Thunderbolt Update: A Trademark Victory for Apple?

I reported in February that Apple and Verizon/HTC might be headed for a tussle, in light of their identically-named products.  Apple announced its new THUNDERBOLT peripheral interface earlier this year, while HTC dubbed its first Verizon 4G LTE smartphone the HTC THUNDERBOLT.  At the time, I located a trademark application filed by Verizon for THUNDERBOLT in class 9, for a “wireless communications device.”  That application was dated December 2, 2010.  I see that the application was eventually published, but recently it went abandoned.

Meanwhile, an application for THUNDERBOLT in the same class for “handheld and mobile digital electronic devices for the sending and receiving of telephone calls, faxes, electronic mail, and other digital data” and for “mobile telephones” was filed in the same class by Apple on May 6th, 2011, claiming the priority of an earlier foreign filing for the same mark in Jamaica — wait for it — on November 9, 2010.  That beats Verizon’s file date by approximately three weeks. Touché, Apple.

Antitrust Digital Music Presentation

I gave a presentation today at the University of Akron School of Law entitled The Record Industry & Digital Music Price Fixing: Starr v. Sony BMG Music Entm’t, 592 F.3d 314 (2d Cir. 2010), cert. denied, 131 S. Ct. 901 (U.S. 2011).  With respect to the cited case, the U.S. Supreme Court decided by not deciding — that is to say that, the class action victory in the Second Circuit was left undisturbed by the Supreme Court.

The gist of the suit was grounded in the class action plaintiffs’ assertion that during the early days of digital music downloads — prior to the $0.99 iTunes era — the defendant record companies conspired to keep downloadable music prices artificially high so that its established revenue stream generated through CD sales would continue uninterrupted.

The Supreme Court’s decision was a bit of a coup for the plaintiffs, because at the district court level, the judge found no compelling evidence of parallel conduct by the Defendant music companies that would suggest antitrust behavior.  In contrast, the Court of Appeals identified at least seven non-conclusory factual allegations suggesting that there was indeed quite a bit of parallel conduct by the Defendants.  The district court and the appellate court could not have been much further apart, and the Supreme Court effectively sided with the latter.

In the grander scheme, I find the case to be especially interesting because it fits well into a discussion about the difficulties that corporate entities and the law itself experience when they attempt to play catch up with new digital technology, a theme that I return to frequently in my writing.  In this case, the music industry was overwhelmed by the emergence of file sharing, particularly during the Napster era, and both industry and the law were initially ill-equipped to manage a technology that simultaneously held so much promise and so much threat for the music industry.  It has been argued that the music industry made some poor decisions at the outset and has invested heavily in supporting those decisions ever since.

It will be interesting to see what the district court decides upon remand, now that the Supreme Court has declined to grant cert to the record companies.  The case has a bit of a Shakespearean quality of the “something is rotten” variety, when you consider that the district court’s ruling was almost diametrically opposed to the Second Circuit’s subsequent decision with respect to the evidence of parallelism.  This alone wouldn’t be particularly bothersome, if not for the district court judge’s admission that she has a potential conflict of interest: her husband represents several of the largest record companies.  And yes, she declined to recuse herself.

Once the case shakes out, I hope to convert my PowerPoint slides and research into a new article.  Stay tuned.

A Thunderbolt by Any Other Name

I have been anxiously awaiting the arrival of Verizon’s first 4G LTE smartphone, the HTC Thunderbolt.  If it boasts the same Rx/Tx speeds that I am getting with my LG 4G USB modem, I will be very pleased.  After the usual delays, the HTC Thunderbolt is due to hit Verizon stores any day now.  Curiously, I see that Apple is planning to offer a new proprietary peripheral connection interface on its devices which will compete with USB 3.0.  Also dubbed Thunderbolt, the new interface was developed by Intel and it should be appearing on Apple MacBook laptops soon.

Apple/Intel's Thunderbolt Interface

While smartphones and computer peripheral interfaces are not identical goods, I would not want to be the party with inferior registration rights in that trademark battle, particularly if Apple, which protects its marks aggressively, finds itself in a corner.

There is one interesting quirk here, with respect to the HTC Thunderbolt: in the past, HTC has, as far as I can tell, always filed U.S. trademark applications for the phones it develops (Incredible, EVO, Incredible S, etc.). But in this case, Verizon was the party which filed an intent-to-use application for THUNDERBOLT. This may simply be the result of an agreement between Verizon and HTC whereby Verizon will be the only carrier to sell an HTC phone bearing the THUNDERBOLT mark and consequently the trademark registration responsibilities were handed off to them. Ultimately, whomever owns the mark (presumably Verizon) will grant a license to the other to use it as well.

Verizon’s application Ser. No. 85188944 for THUNDERBOLT was filed with the Trademark Office on December 2, 2010.  I can find no U.S. applications for THUNDERBOLT by Apple or Intel, although Apple has a history of being coy about its mark registrations, so it may have something in the works.

When Good Consoles Turn Bad

We purchased our 60 GB Playstation 3 console (the “Launch” version, not the new “Slim” version) back in January 2007 and have enjoyed many hours of great use from it.  In addition to gaming, Kelleigh and I use the PS3 to watch movies, view online content, run picture slide shows for friends and family, and more recently, to stream audio from my PC via our home wireless network to the amplifier in the living room.  This particular feature is complimented by our home stereo system setup: the amplifier outputs sound to the surround speakers in our living room for movie viewing, and it can also send audio to the speakers we have mounted outside on our deck.  In addition, we have a Logitech Harmony® 900 universal remote that we use to control the PS3, TV, amplifier, etc., and since the Harmony remote uses RF technology, we don’t have to point it directly at any of the components — we just have to be within about ten meters of the RF receivers.  That means that we can stream music from my PC to the PS3 and control the sound volume, track number, etc. from the Harmony remote while we are grilling steaks on the deck with friends.  It’s a bit of a techy wonderland.

Or at least it was.

Sony built the PS3 with one ostensible flaw: the motherboard was soldered using lead-free material.  This kind of solder is purportedly more vulnerable than leaded solder to cracking in the presence of heat and the PS3 is no slouch when it comes to generating heat: its multiple cell processors and RSX GPU produce a great deal of thermal energy.  I attempted to mitigate the heat problem in our compact entertainment center by installing two fans in the rear: one draws cool air in near the floor and the other pumps it back out near the top:

Using two ultra-quiet 120mm computer case fans hardwired to a single AC adapter and a little wiring help from my friend Craig, I created a fair amount of circulation in the center.  The fans run continuously and are indeed ultra quiet.  Despite my best intentions, however, our PS3 finally succumbed to one too many unintentional all-nighters and presented us with the dreaded YLOD (Yellow Light of Death) last week.  This occurs most often when the solder finally cracks and the GPU loses contact with the motherboard, resulting in a steady amber light on the case exterior, indicating a hardware failure.

But help was available: there are several online manuals available that provide instruction in the fine art of re-flowing solder on your PS3 motherboard.  Following one of those manuals, I disassembled our console on the kitchen counter.  Since  I did not have any confidence that I would recall where everything went when I was ready to reassemble, I placed every screw in its own individually-labeled mini Ziploc baggie.

Can you spot the dental and surgical instruments?

Once disassembled, I carefully re-flowed the solder with an inexpensive heat gun that I purchased at the local Ace hardware store.  After heating the solder to 600°F for a few seconds, I allowed it to cool and and then I re-coated the heat sinks with some silver thermal compound that I had left over from my last PC build.  I put everything back together and *presto* our PS3 was reborn.  Happy days again.

Re-flowing is likely not a long term solution, however, as the solder will probably crack again in time.  A better solution would be to have the chips reballed with leaded solder, and I see that this service is provided by at least one company for a reasonable fee.  If our beloved PS3 crashes again, that is probably the route that I will take.

Update August 2011: eleven months later, our original PS3 is still going strong, although we have since transferred it to my home office (where it gets better air flow and less of a workout) and we have added a newer PS3 Slim to the living room.