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Lugz Claims Apple Didn't 'Think Different'

By Susan B. Shor MacNewsWorld ECT News Network
Nov 7, 2005 10:50 AM PT

Apple Computer, a company whose identity hinges on its individuality and uniqueness with a slogan of "Think Different," finds itself facing a claim that its advertising lifted from earlier ads for shoemaker Lugz.

Lugz Claims Apple Didn't 'Think Different'

Both ads feature silhouetted figures against red, orange and yellow backdrops as hip hop songs play. Lugz on Friday announced it had sent a 'cease and desist' letter to Apple and its ad agency TBW/Chiat/Day for the iPod ad, which started running last month and features rap star Eminem. Lugz's ad was created by Avrett, Free & Gisnberg and first ran in 2002.

The next move will depend on whether or not Apple responds.

Legal Claim

"A cease and desist letter simply puts the recipient on notice that someone is claiming a legal right. In certain cases, continuing infringing conduct after receiving notice can support a finding of willful infringement, which can lead to greater damages, but infringement can occur even if it's not willful," Georgetown University law professor Rebecca Tushnet told MacNewsWorld.

The similarity in the ads was first mentioned in the media by AdFreak, an AdWeek blog, and has since spread.

If Apple and Lugz cannot come to an agreement and Lugz chooses to sue Apple, the company would have to prove that the ad was indeed copied and that it was unique enough on its own that the Apple ad must have been copied from the Lugz ad.

"Lugz would have to prove that Apple's ad unlawfully copied, a claim with two parts," Tushnet explained. "The first element is copying in fact, meaning that the Apple ad was based on the Lugz ad and not just an independently created ad that happens to look similar. If Apple can show independent creation, however, Lugz's claim would fail.

"The second element asks whether the copier took too much, whether the second ad is substantially similar to the first or whether they merely share basic elements that are too common for anyone to copyright."

Intention Irrelevant

Tushnet added that even if TBW/Chiat/Day did not set out to copy the ad, there could still be liability.

"Unconscious copying -- that is, if the creator saw the Lugz ad and forgot about it, but borrowed from it while creating the Apple ad -- can be infringing even if the infringer had no intent to copy," she said.

Not surprisingly, Apple, which is often less-than-responsive to reporters' inquiries, said it does not comment on legal issues.

The public may never be privy to the resolution of the intellectual property issue.

"Most such disputes end up settled out of court, often confidentially, so it's hard to say what's likely to happen," Tushnet said.

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