Thursday, December 10, 2009

The iTouch and the myTouch

When I first saw a TV advertisement for the myTouch telephone, I thought instantly of the iTouch, which as I understand it, is an iPhone without the phone app (I have never held either in my hands and have only seen the former in anyone else's.)  And having spent a few years working occasionally on the linguistic side of  trademark law, I wondered if Apple did not have a case for trademark infringement.  One of the tests is that the new mark evoke the notion that the product it identifies might have the same origin as the product identified by the earlier mark. If surveys were to demonstrate that a significant proportion of consumers share my perception, Apple would be a major step forward toward proving its case.
A case for infringement would have to consider the similarity of the marks. They are, of course, very similar. We have in the case of “iTouch,” a lower case “i” followed by the word “Touch,” and in the case of “myTouch,” we have a lower case “my” followed by the same word. The letter “i” when capitalized and only when capitalized refers to the person speaking or writing something. Here, though, it is not capitalized. In the case of “my” we have a word that refers to the speaker/writer of something or, in the case, of “myTouch,” the owner/user. One thing is clear, the “i” of “iMac” or“iPod” or “iTunes” or or “iPhone” is normally not intepreted as referring to the owner/user.
In fact, when the iMac was first introduced, Steve Jobs claimed (see the title link)
The iMac comes from the marriage of the excitement of the internet with the simplicity of Macintosh.
He went on to say that it was designed with the fact that the primary use people wanted a personal computer for was to get onto the internet. Jobs cited a set of "i"-words that he wanted to associate with the iMac, namely "internet, individual, instruct, inform, inspire." Therefore, the voice of he creator provides compelling evidence that there is no semantic connection between the “i” of “iTouch” and the “my” of “myTouch.”  When he associates the iMac with these other "i"-words, he severs the relationship between "i" and the owner/user more completely even though one of these words is "individual."  Note  that this word is not equivalent in meaning to "personal."  In fact, the iMac was and is used in environments in which many individuals use a particular machine.
The fact that the lower case prefix”i” is attached to a wide range of products distributed by Apple argues for it having only the meaning “a product distributed by Apple.” Originally, this “i” primarily referred to the internet though Jobs added some other associations. But the iPod breaks this connection. Apple crated iTunes in the hope that people would buy music using iTunes and then downloading it onto their iPods. That would involve internet connectivity. However, one could use an iPod without ever connecting it to a a program that connected to the internet by simply ripping one's own or a friend's music and converting it to a format the iPod could read and downloading it directly.
It is clear that there is a significant morphological similarity between “iTouch” and “myTouch” for they share a morpheme. However, the first has a prefix that refers to the internet primarily but also to other things or just signifies that the product is made by Apple, and the other has a prefix that refers to the owner/user. In addition to the morphological similarity between "iTouch" and "myTouch," thre is an enormous overlap in product function.  In fact the only substantive difference is that the iTouch cannot be used to make calls. So, Apple would find it difficult to keep HTC and T-Moble from using the mark “myTouch.” Nevertheless, as I said, I suspect a survey of consumers aware of the  iTouch, confronted with this new product,  would connect “myTouch” to “iTouch” and thereby to Apple. At the very least, HTC would seem to be ripping off some of Apple's market good will. I am not a trademark lawyer but I think that is a 'no no.”

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Saturday, December 05, 2009

The More You Spend The More You Save

This evening, I caught the tail end of a Zale's commercial exclaiming,, "The more you spend the more you save."  Contrast that with, "A penny saved is a penny earned."  Neither actually makes any sense except for the fact that if you do save a penny on day 1, then on day 2, it is as if you earned a penny on day 1 though of course you didn't.  The Zale's ad is even stupider, which is troubling for it presumes (as is true for many people I fear) that people will be so seduced by the combination of the gratifying concept of spending -- don't we all love to spend? -- and the comforting concept of saving to rush to Zale's  to buy diamonds.  However, trust me, if you go by Ben Franklin's adage on day 1 you will have more money on day 2 than if you abide by Zale's.

At the Zale's web site linked to the title of this blog, you get a bit different version of this promotional scheme, namely "the more you buy the more you save."  Notice that these two claims are linguistically different.  We spend money to buy things.  However, what the web site offers is savings in proportion to how much you spend, not how many things you buy. 

According to Zale's, if you spend $250-$449, you save $25 dollars.  Clearly the smart shopper would spend just $250 and get thereby a 10% reduction.  If he or she were to spend $449. he or she would get a tiny bit more than 5%.  If he or she spends $500 to $999, he or she wold get $50 back, which offers the same percentage reduction/savings.

Offers scale upward from the lowest level of spending upward to a maximum of $1,000 if you spend $5,000 or more.  Notice that spending $5,000 gets you a savings of 25%.  Wow, what a deal!  The problem is that if you stayed out of Zale's and did not spend $250 there on day 1, you would still have $250 on day 2, but if you spend that $250, you would be down $225.  So, spending money at Zale's doesn't save you money unless you are determined to spend $250 and don't go to a store that gives you a better break.  In short, while a penny saved may not be a penny earned, a penny spent is definitely neither a penny earned nor a penny saved.

I am lucky.  My wife has never demanded or even hinted she wanted diamonds or any other kind of pricey jewelry.  I think I did once buy some pearl stud earrings in a fit of romantic fervor,  but that would have been a long time ago.  I suggest to men that they flee from any woman who really, really wants jewelry, other than, say, an engagement ring.  My wife and I got married with no engagement ring and no wedding rings, but when we went to Scotland for a couple of months the next Summer, we had a craft jeweler make us matching wedding rings.  I suppose that made us legal.  It sure made my mother-in-law happier.  It is possible to spend money on other, probably more sensible things.

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