For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Tuesday, 15 October 2013

Android: Building A Brand Around An Open-Source Trade Mark

The mobile wars are not only limited to getting hardware into the hands of consumers.  There are also battles for software dominance.  Apple’s iOS reigned supreme for years, based on the success of the Apple devices on which iOS was embedded.  However, Google’s Android operating system quickly gained popularity thanks in part to partnerships with Samsung, HTC and other hardware manufacturers.  Android now makes up 64% of the smartphone market, according to Wikipedia, with over 1 billion devices running Android worldwide.  

Early on, Android benefited from the marketing might of Google in building product recognition, and it has grown into a successful brand in its own right.  Indeed, like the Nike swoosh logo, the Android logo – a little green robot – is synonymous with Android.  It is a rare feat when a company creates a logo that so embodies the brand that it can serve as a source identifier even without the brand name accompanying the logo.  How are these famous brands are created?  On Friday, The New York Times published the Android logo creation story, which provides insight into the development of a simple, but powerful, brand symbol.   
Former Google designer Irina Blok created the logo in 2007, when Google’s design team was instructed to create a logo for Android that met only two criteria: that it involve a robot and that it be easily identifiable.  Ms Blok succeeded on both counts when she designed the “stripped-down robot with a tin-can shaped torso and antennas on his head.”  Even more, Google and its design team made the surprising decision to treat the logo as open-source:
“We decided it would be a collaborative logo that everybody in the world could customize,” she says. “That was pretty daring.” Most companies, of course, would defend their trademark from copycats, and million-dollar lawsuits have been filed over the rights to corporate insignia. This one would remain free.
In the years since, the Android logo has been dressed up as a ninja, given skis and skateboards and even transformed into a limited edition Kit-Kat bar.
This Kat's favorite iteration of
the Android robot
As far as this Kat can tell, Google has not filed any trade mark applications for Android that include the Android robot logo.  [If any readers are aware of any registrations or applications that this Kat has missed, please let IPKat know!]  Why would Google, which seems to have over 300 trade mark applications and registrations on file with the USPTO, treat its Android logo as open source?  For one thing, the Android platform itself is open-source.  Android was the first product released as part of the Open Handset Alliance, a consortium of companies in the mobile industry that agreed to work together to develop open standards for the industry.  As a result of the open-source nature of the product, developers may easily use and modify Android code to create apps and other symbiotic products.  This is likely the main reason why Android is used by 71% of mobile developers. 
On the other hand, Google did seek to trade mark the name Android in Class 9 for:
mobile phones; operating system software; software for use in developing, executing, and running other software on mobile devices, computers, computer networks, and global communication networks; computer software development tools; computer software for use in transmitting and receiving data over computer networks and global communication networks; computer software for managing communications and data exchange among and between mobile devices and desktop computers; computer middleware, namely, software that mediates between the operating system of a mobile device and the application software of a mobile device; computer application software for mobile phones.
Why not seek trade mark protection of its design mark, too?
A search of the USPTO records reveals that Android is quite a popular word in connection with technology-related goods and services.  In fact, Google’s USPTO word mark application for Android is currently stalled due to a conflict with a prior registered mark in Class 9.  [Are there similar trade mark conflicts surrounding the word mark "Android" in jurisdictions other than the US?]  But even if Google cannot register the word mark Android, it could likely, nonetheless, trade mark the Android logo due to the logo’s high degree of consumer recognition as an identifier of the Android operating system. 

This Kat wonders if, perhaps, the decision to make the logo open-source is not so much a daring act of public engagement, but an ingenious way to build equity in a brand that might otherwise fail to attain trade mark protection.  Google benefits from valuable free marketing by allowing developers, partners and consumers to use the Android logo as a character, dressed in fanciful costumes ["fancy dress," for the British readers] or inserted into clever environments.  Treating the logo as open-source also supports the attributes that Google wants consumers to recognize in the Android brand: innovative, creative, user-friendly. 

Regardless of Google's reasons for keeping the Android logo open for community use, there is no doubt that the strategy has worked in making Android one of the most recognizable brands in the mobile industry.  This Kat wonders, however, whether allowing developers and users to create derivative works from the Android logo might ultimately backfire on Google if it later seeks to enjoin certain uses.  It can be difficult to change established terms of use years down the road, as Instagram discovered back in August.  If it chose to do so, Google, like Instagram, would likely succeed in changing its trade mark strategy with only a slight cost to its user and developer goodwill.  On the other hand, Google's promise to keep the logo free for all could create a trade mark free-for-all that Google might later regret.

The IPKat wonders, what do readers think? 

Cat v Robot here
Kit-Cat Clocks here
Kit Kat and Domino here

4 comments:

Pamela Chestek said...

Because the figure is a mascot, not a logo (despite the NYTimes characterization of it). You are correct that claiming that it is a trademark is largely inconsistent with an attribution-only copyright license, or at least enough so that trying to claim trademark rights would be a very difficult battle. Google hasn't tried to claim the robot is a trademark, which is why you don't find any trademark applications. The case is the same with "Tux," the penguin mascot for Linux. I would say these are cases of de facto secondary meaning - although they are associated with particular software projects, they are unenforceable as trademarks.

Ashley Roughton said...

I entered this forum to say what Pamela did and discovered that she'd said it. Well said.

I would not worry about how newspapers characterise things. In cases of mine which ever get in the news my trade marks are always copyrighted and my copyrights are always patented.

V. Stoilov said...

Although Google has no registered trademarks for this logo, they can control its use and changes through copyright of the logo which they have. Creation of derivative logos requires a right of adaptation.
Even now Google's policy promotes free use of the logo, in case of need they have a mechanism through which to control it.
By the fact that this logo is being left free of use, Google managed to spread it around the world much more faster, which is a good strategy when you want to fight with the market leaders.

Robin Fry, DAC Beachcroft said...

Even though no trade mark applications may have been made, the logo is still, of course, a copyright work protected in over 170 countries worldwide for the life of the author + 70 years. And, critically, copyright cannot be declared invalid for non-use nor diluted by other's misuse.

Further, claims for copyright infringement may be brought in relation to any instance of copyright infringement (subject to limitation act provisions) even if multiple prior instances of copyright infringement had previously been ignored.

Google could, then, recover control of the Android logo at any time - it it wished.

It seems also that Google may already have taken some steps to further protect its copyright design by filing a copyright deposit at the US Library of Congress in October 2011. The filing is for visual material described as 'Android Robot Design' and first created as a work for hire in 2007.

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