My team and I came up with the idea for an iPhone fart application in summer of 2008. We knew it would be a hit. We just needed to develop it.
We took great pride in developing iFart Mobile. It was more than another iPhone application. It was a true entertainment machine with a unique interface. It didn't LOOK like an iPhone app.
When we submitted the application to Apple, it was put "in review". We were surprised because we had heard that Apple had rejected similar apps in the past.
So the app sat in review for several months.
On December 12th, I received notification that iFart Mobile had gone live in the app store. I believe there were two or three other apps that went live that day.
I immediately went into marketing mode, sending emails, making phone calls and writing press releases.
TechCrunch did an article that day, focusing on iFart Mobile and another fart app called Pull My Finger.
I've got nothing against the people who make Pull My Finger. In my opinion, their app was inferior to ours. My team and I strongly believed that when people were given a choice between the two, iFart would be the clear winner.
We were right. People LOVE iFart! We've been written about in dozens of publications all over the world, and my blog entries detailing our rank-to-sales numbers are now legendary in the iPhone development and tech community.
Pull My Finger debuted high on the iTunes charts, but fell very quickly as word of iFart Mobile spread. Combined with my direct marketing campaign to editors all over the web, iFart became a cultural phenomenon while the other app drifted into obscurity.
As a very small part of my marketing I uploaded a video to YouTube called "iFart Mobile - Pull My Finger" intending to leverage the term commonly used to set off flatulence. I never imagined a common phrase like that would qualify for Federal trademark status, and I don't believe it does.
However, Air-O-Matic, the people that developed Pull My Finger, beg to differ. Since we did our first press release and linked the common phrase "pull my finger" to our app, they have been contacting us and asking us to stop.
As a matter of good will, I changed the press release the very same day they contacted me.
I have also changed the name of the video to show that there are no hard feelings. (That video only received something like 15,000 views. Not enough to make a dent, anyhow...)
In my app description on iTunes, I have testimonials. One of them is direct from my site, WorldVillage.com, in which I give the opinion, "Way better than Pull My Finger!" Of course, I have the right to state my opinion, especially one I believe to be true!
I also used Twitter to search for people who were discussing any of the competing fart apps and engaged in conversation with them. Air-O-Matic didn't like that. Perhaps they believe they own Twitter and the people using it?
Air-O-Matic contacted Apple insisting that they remove our app from the app store, claiming "unfair business practices."
Apple told them that they would not remove the app and that we should work it out between our companies.
No problem. When we asked their counsel why they didn't just come to us in the first place, we were told something to the effect of "we didn't think you would be open to discussion."
That's pretty amazing, especially considering that we were EXTREMELY responsive to their previous complaint regarding the press release.
I would be happy to engage in a discussion with Air-O-Matic. My attorney sent my contact information to Air-O-Matic's counsel with the invitation to make contact.
Air-O-Matic rejected my offer, and instead, sent me a letter stating that I should pay them $50,000 for alleged damages that I had done to them and their product.
Now I have a few options...
1) Do nothing. I'm not a "do nothing" kind of person.
2) Reply with "I don't think so" and let them file a suit in Florida.
3) Be proactive and ask a Federal judge in Colorado to rule that "pull my finger" is a common phrase that cannot have claim of trademark.
I have opted for option #3. Air-O-Matic, Inc. is being served with a Complaint for Declaratory Judgment today.
I was willing to negotiate with them, but I will not be harrassed into paying them money just because our application was more popular and sold more units than theirs.
By rejecting my offer to discuss with them, we have incurred a loss of precious time and resources, not to mention legal fees. I intend to receive recompense.
The court filings are all public record, so you can download them here.
So what would you have done? I'm eager to hear your opinion!
It's Del.icio.us!
Furl It!
February 13, 2009 04:39 PM
Well, Joel,
That's an interesting question. However, you are asking it from a financial position that I have yet to achieve.
See, of your alternatives, I would be forced to take the first ... I don't have pockets deep enough to entertain options two or three .
Not what I'd have wanted to do, but I'd have been constrained by fiscal realities. I just don't have the disposable income to entertain the course of action you chose, nor even to be the target of legal action as described in option two.
You'll only get valid answers, I suspect, from others with similar pocket depth ... neither those with markedly deeper or markedly shallower pockets would normally be able to place themselves into your position .
I will say that I would have liked to have done as you did ... but that would not be realistically possible.
February 13, 2009 05:14 PM
Good move, Joel. I think you did the right thing.
Keep us all updated.
Regards,
Tony Thomas
February 13, 2009 06:31 PM
Is this some kind of joke? Are you really suing each other over farting?
February 13, 2009 06:42 PM
Hi Joel,
Bravo, Job well done.
Don't you hate it when
people cause The Pit
Bull in to come out.
Ricardo
February 13, 2009 06:57 PM
A lot of hot air, if you ask me.
February 13, 2009 07:33 PM
Oh, please. You and your company are well known for putting fake reviews on other apps sites, and sending your own threatening letters to any app developer you take offense to. Considering you are normally the aggressor in these situations, I don't believe a word of it.
If any of what you have written is actually true, I hope they sue your asses and win big.
February 13, 2009 07:44 PM
Interesting that "marketing mode" for your company was to immediately send your own threatening emails. And now, you complain that someone else is JUST LIKE YOU. Interesting also that the only people doing any actual sueing is YOU.
February 13, 2009 08:27 PM
Hi Joel,
Firstly, "Boris" & "Steve" (see comments above) seem like Air-O-Matic stooges to me:)
Joel: I've always thought of you as one of "the good guys" on-line and have learnt a lot from you as a passive listener over the years. This situation strikes a chord with me and I feel compelled to state my support for your case.
On this issue:
I have come across more than my fair share of rogues trying to "stake their claim" on-line using black-hat methods and questionable ethics. It seems Air-O-Matic want a slice of your pie as they're clearly not a competitive proposition themselves.
Any success always attracts the odd rotten tomatoes. $50k sounds like a outrageous try-on from this company. Perhaps their efforts would be better directed towards generating better software?
Being in the process of taking legal action myself, I know how much of a distraction this can be from the day to day stuff of making great software. This stuff can stifle your creativity if you dwell on it too much:- DON'T LET IT!
You need to be successful in your legal challenge: These type of people need to get a clear message.
Hope all goes well. Let us know how it goes.
February 13, 2009 10:01 PM
Maybe you can get together with @jasoncrouch and do I BELCH :o) but seriously, I think you did the right thing.
February 14, 2009 12:19 AM
1) We're not suing anyone. We're asking a judge to recognize what we already believe to be true.
2) Anyone who downloads an application, paid or free, from the app store has the same rights to review a product as anyone else. It's how Apple's system works.
3) We've not sent threatening letters to apps we've "objected" to. We have sent letters to developers who have named their apps "ifart", which is our name. I believe Air-O-Matic did the same thing for all apps named "pull my finger"
February 14, 2009 04:15 AM
Joel-
I'm responding to your comment that "we're not suing anyone" in the comment section above.
You have named them in a lawsuit. You have served them with papers. You title this blogpost "iFart Mobile takes Pull My Finger to court". You have a lawsuit that, if you win, they lose. They lose control of an asset that they claim ownership of now. You force them to expend resources to fight it (which is also a losing proposition) or roll over (a losing proposition).
So yeah, you sued them.
Don't try to look like the good guy in this. You've "escalated the battle".
Not saying it wasn't appropriate, or that I hope you lose or anything like that. They forced your hand with their actions, as you explained. But you could have easily relinquished or ignored them. You took action.
Good luck! (When will people realize that there's enough opportunity out there for all of us to make money!?)
February 14, 2009 07:42 AM
Hi Joel--
Just wanted to suggest that you and your team create a Squidoo app for iPhone so as to access the site and upload preliminary content to lenses in process.
It would go over amongst the Squidoo lens makers (with iPhones!!)
February 14, 2009 08:28 AM
Skeptic, we have no desire to take control of their asset. We just want them to leave us alone.
You are correct. There is more than enough to go around. I don't like dealing with pesky issues like this when there are more cool things out there waiting to be built.
February 14, 2009 08:35 AM
A Declaratory Judgment action is meant to deal with situations in which someone has threatened to sue you, but has not actually filed suit. It is basically a way of saying "put up or shut up," so that you do not have the threat of a lawsuit hanging over you indefinitely. If AOM really has trademark rights in "pull my finger," as they have apparently asserted, then they should be able to prove it in court.
February 14, 2009 08:42 AM
Hi Joel,
This is by no means a legal advise but, while I think you were right to take the initiative - now that you have their attention I would try to seek a way to settle this out of court.
Lawyers tend to serve themselves and you might end up paying a larger sum than you intended.
Guy Nesher
February 14, 2009 09:57 AM
Joel-
Quick replay:
I said: "They lose control of an asset that they claim ownership of now."
You said: "we have no desire to take control of their asset."
I never said you wanted to "take control of their asset", I said you are suing to have them lose control of it. The asset I am referring to is their claim of ownership of the trademark "pull my finger". They claim ownership. With your lawsuit, you are indeed trying to prove that they really do not own it. You are trying to get a judge to declare it as fact.
So while your statement might be true - that you have no desire to take control of their asset, you ARE trying to disprove their claim to that asset - the trademark.
You're just playing games with semantics here. You sued them. That's cool. I see no problem with that (and I actually side with you, based on the limited, one-sided presentation). But don't say you didn't sue them, just to look like the innocent victim and win over fans through a blog entry.
You want to prove that they don't own what they claim to own - the trademark. That's cool too. I think trademarking "pull my finger" is silly. (But I DO think the current courts would allow trademarking the phrase, for use within the software arena, so I think you have a greater than 50-50 chance of losing on this point.)
But don't deny it, saying that you aren't trying "to take control of their asset". You are trying to cause them to lose control of that asset. (although you don't see the trademark as their asset, they do!)
I've been through the legal mill, and I agree with others. You brought out the guns. Now try to resolve it peacefully. Lawsuits are long, emotionally draining, distracting, and expensive. Much better to strike a quick agreement, even one that's not nearly as favorable as where you MAY end up after a court battle. Because once you subtract the costs (real + emotional + opportunity), it just isn't worth it. The $50K that they demanded will seem like peanuts, trust me.
Keep in mind, even winning this court action does not end it. All you did was escalate things. Expect a counter suit (in THEIR home state) for defamation or something. And then you have a mess. And who benefits? The lawyers.
Time to check out Rodney King's advice. (Google it, if you're too young to remember.)
February 14, 2009 10:15 AM
Using the term "pull my finger" as you did
can easily be read as an attempt to confuse
customers; as you pretending to be them.
--
This brings to mind a lawsuit: Jordache
unsuccessfully claiming trademark infringe-
ment against Lardass brand jeans.
February 14, 2009 10:49 AM
Skeptic,
I agree. This should end in peaceful conversations. We have extended the olive branch with no reciprocation. The invitation has been there.
But I disagree with your assertions regarding the trademark. As does our counsel.
ST, that phrase is so common. I've been using it since I was a kid.
Anyhow, I'm going into silent mode on this. I hope the AOM people will make the call and we can keep from making the lawyers richer.
February 14, 2009 03:22 PM
I would have went to their office after eating beans all day before and let one rip right in their CEO's office!
February 14, 2009 05:44 PM
There was an old Far Side cartoon with 2 dinosaurs, and an incoming meteor with one dino telling the other one "pull my finger."
February 14, 2009 09:28 PM
AND THE MARKETING CONTINUES....
February 15, 2009 12:58 AM
It does appear that you were trying to cash in on their reputation by using their name. While I don't know if 50k for damages is reasonable, it does seem that you were in the wrong and if I saw a competitor cashing in on our reputation, I'd probably want some damages out of them as well.
February 15, 2009 11:44 AM
Both the choice of action itself and the timing seem suspiciously closely linked to the release of a new book and event.
Hmmm... I imagine that the publicity, particularly that being spread virally through the various social media portals, wasn't the least bit instrumental in the decision.
Mere coincidence or perfect opportunity? It probably cannot hurt, win, lose or draw, with book sales, speaking opportunities, branding strength, etc..., etc..., ad nauseum.
There is so much talk of accidental fame that it appears to some skeptics that there are people also actively engineering 'accidents' or being quick to latch onto accidents, incidents and events where the coattails lead quickly to heightened fame.
When is enough enough. I find the whole affair more than slightly transparent and made up of nothing more than gas and hot air.
Why else post a blog about it? It certainly won't change the facts or impact a court's ruling? Will it?
February 15, 2009 01:17 PM
Good ole american greed can bring out the worst in people. You both need to count your blessings that you made $100k's on a silly app that probably cost you