Complaint received from a competitor on iOS App Store

Following the Cease and Desist topic (that was deleted from the forum) I have a similar problem.

After featuring my iOS app, Packr, on Product Hunt, https://www.producthunt.com/posts/packr
a competitor, the developer of Packpoint, filed a complaint on the iOS App Store.

I received the following email today:

[quote]Dear Jeremie,

Please include [complaint ID] in the subject line of any future correspondence on this matter.

On [date], we received a notice from PackPoint (“Complainant”) that Complainant believes your apps listed below infringe its intellectual property rights. In particular, Complainant believes you are infringing its other and copyright. Please see their comments below.

You can reach Complainant through [name] (email: @.**), copied on this email. Please exchange correspondence directly with Complainant.

We look forward to receiving written assurance that your applications do not infringe Complainant’s rights, or that the parties are taking steps to promptly resolve the matter. Please keep us apprised of your progress.

Please note that during the course of this matter:

  1. Correspondence to Apple must include the reference number noted above in the subject line and copy the other party. All correspondence sent to Apple may be shared with the other party.

  2. Written assurance of rights may include confirmation that your applications do not infringe Complainant’s rights, an express authorization from Complainant, or other evidence acceptable to Apple, and should include documentation wherever possible.

  3. Should you choose to remove your applications (for example, while you make any necessary changes), visit iTunes Connect at http://itunesconnect.apple.com and access your apps in the Manage Your Application module.

• Access your app in the “My Apps” module
• Click on the “Pricing and Availability” tab from the App Summary Page and select “Edit” by “Availability”
• Select and deselect “All” territories to uncheck all App Store territories
• Click on the “Done” button

  1. Developers with a history of allegations of repeat infringement, or those who misrepresent facts to Apple and/or the Complainant are at risk of termination from the Developer Program.

  2. Failure to respond to the Complainant or to take steps toward resolving a dispute may lead to removal of the app(s) at issue as in violation of the App Store Review Guidelines and/or the iOS Developer Program License Agreement. Please keep Apple apprised of your progress.

Thank you for your immediate attention.

Developer: Jeremie Leroy
Provider: Jeremie Leroy
App Title: Packr Travel Packing Checklist
Apple ID: ****

Comments from Complainant: Packr has used most of PackPoint’s content and some of its user experience elements. In using Packr, it is clear that its developer copied PackPoint and then put a new UI on it.[/quote]

Facts:
Link to Packr: https://getpackr.io
Link to Packpoint: https://www.packpnt.com
Packr and Packpoint are both a packing list app. They both have the same business model: a Freemium app and a paid app.
Packpoint was first released in July 2014.
Packr was first released in April 2017.

Packpoint is available in Basque, Czech, Dutch, English, Finnish, German, Italian, Japanese, Korean, Norwegian, Polish, Portuguese, Russian, Simplified Chinese, Slovak, Spanish, Swedish, Traditional Chinese, Ukrainian, Vietnamese (according to App Annie)

Packr is available in Dutch, English, French, German, Italian, Norwegian, Spanish, Turkish

My thoughts:
Although some items on the lists are similar (there aren’t a thousand different ways to name packing items), I believe Packr is a different App and this complaint is void.
Packr features the following items that Packpoint doesn’t:
destination photo, detailed weather forecast, more packing lists, different items in packing lists, nearby attractions, multi-destination trips, iPad support, no ads, synchronization on several iOS devices…

Any advice on this matter would be really helpful, this is the first time in my business that I receive such a complaint.
I am sure that in court this issue would be settled in no time, but I am afraid that Apple sees this complaint differently and deletes Packr from the App Store.

Lawyer time.

So, the appropriate thing to do is to request what intellectual property they are claiming that you are infringing. The complaint says “Packr has used most of PackPoint’s content and some of its user experience elements. In using Packr, it is clear that its developer copied PackPoint and then put a new UI on it.” A response might be something like “I’ve recieved your complaint, but dont know what copyrights/IP you are accusing me of infringing. Could you please clarify what, specifically, you see as infringing so that I can take appropriate action? If you have a patent or other IP on packing lists, I am happy to review them, but this is so broad and with packing applications dating back to task lists made for early versions of DOS, I’m just not sure what I am being accused of infringing on.”

I’m on of your customers, so please feel free to PM me if you want to follow up.

-David

“its developer copied PackPoint and then put a new UI on it”

So did the developer copy it or put a new UI on it? Those two are mutually exclusive.

“2. Written assurance of rights may include confirmation that your applications do not infringe Complainant’s rights, an express authorization from Complainant, or other evidence acceptable to Apple, and should include documentation wherever possible.”

Provide Apple with written assurance so they check the box that says “we did not enable copyright infringement” and go on your merry way.

I can’t find any information about who Wawwo is, where they’re from, or who they’re run by. The whois protection is one of those scummy places in Panama that will never respond to you. Googling their company name brings up nothing but marketing for this app (no company website). Their privacy policy is incredibly thin, and contains no contact information: http://privacy.packpnt.com

The whole thing seems like a get-rich-quick scam, so I sincerely hope you get through this.

DON‘T WRITE THAT!

That would basically be an admission of guilt.

Write more along the lines of: “Firstly I want to categorically state that I did not copy PackPoint. But like for example with Word Processors, some similarities between apps doing similar jobs are to be expected (for example if both apps use lists then that does not constitute any infringement but is simply common ground and standard user interfaces). Secondly I am using standard icons from ??? that are freely available under ??? license. I would be very interested in what specifically PackPoint believes my app is infringing, especially as “copying the app and putting a new UI on it” are somewhat mutually exclusive. I had a look at PackPoint and here is a list of differences:

Furthermore I can’t find any information about who Wawwo is, where they’re from, or who they’re run by. Googling their company name brings up nothing but marketing for this app (no company website). Their privacy policy is incredibly thin, and contains no contact information: see http://privacy.packpnt.com. [when was their last update? Can’t find them in the German app store] I am therefore wondering if they have become aquired by a patent troll that threatens other developers into paying. I would be grateful if you could let me know about previous instances of alleged copy infringements.”

The letter suggests that Apple are indifferent. ‘sort it out yourselves’
Did they actively remove all the flappy bird clones?

‘has used most of PackPoint’s content’
I dont have either of these apps, but content is data that is only available in the app, created by the author.
If you are culling data from the web using any kind of serach, then like a news app, its not your content or their content, its freely available content. They dont have a copyright on Lisbon as a destination, for example, or suitcases as a container, or toothbrushes as an object.

‘some of its user experience elements’
Buttons, lists etc? Tough one to copyright, that.
Are any of their graphics in your app? (I found a competitor of mine had opened my Mac app and literally stolen my graphics to make their app … I didn’t have the money or time to pursue them legally which presumably is what they counted upon. Luckily their app was rubbish and soon died in the market)

The Packr name isn’t close enough to levy a charge of ‘passing off’

Do your keywords include ‘PackPoint’? That would be a no-no

Lets see… Googling Packing Apps for ipad… it looks like Packr is actually the only one NOT to show up on the first few pages
Heres a short list of apps that kinda look a lot alike to me.. (URLs have spaces in them so as not to unduly promote anyone)

GetPacked
https://itunes.apple.com/gb/app/getpacked-packing-list/id31 8817435?mt=8

TripList
https://itunes.apple.com/gb/app/triplist-packing-list-manager/id696 726953?mt=8

Packing pro
https://itunes.apple.com/gb/app/packing-pro/id312 266675?mt=8

Packpoint
https://itunes.apple.com/us/app/packpoint-travel-packing-list/id896 337401?mt=8

Packing List
https://itunes.apple.com/nz/app/packing-list/id1235 121075?mt=8

StyleBook

Packing Planner
http://www.spaceodigicom.com/pa cking-planner/

Packing List App Inventory
https://www.voxme.com/ne ws/voxme-released-packing-list-app-inventory-for-iphone-and-ipad

Wunderlist
https://www.wunderlist.com/blog/sum mer-travel-made-easy-with-wunderlist/

UPackingList
https://appfelstrudel.com/id/323363997/upa ckinglist-free.html

Packing
https://appfelstrudel.com/id/294710480/pack ing-to-do.html

Pack & Go
https://appfelstrudel.com/id/333776236/pac k-go-packing-list.html

Saving Grace
https://appfelstrudel.com/id/441237653/sav ing-grace-travel-packing-aid.html

I had the same with one of my apps. Do this;

Say you are not away of any patens ruling and ask for an official intellectual property document (read: patent number).

  • If he cannot provide this, send a mail to Apple he has no reason for the claim. In my case the developer never replied and Apple closed the case within 30 days.
  • If he can, check the patent if your app uses that patents or not.

My bet, he just a small devs (looking at his website) that wants to try stopping you.

Forgotten to add:

You are aware you can do the same to him? It takes about 5 minutes to fill the form and Apple automatically sends the complaint to the developer. Apple does not check if the claim is valid or not.

This is commonplace on Amazon, where sellers routinely see their listing suspended because of that kind of complaint. You are fortunate Apple is less stringent. Most of the time, such complaint has to do with a few words infringing on copyright (such for instance as mentioning “Nike” in a listing, which infringes on Nike’s copyright).

In this instance, the Cease and Desist seems awfully vague and broad.

However, here is a letter I picked up from a group, which you may want to modify slightly for your case. It had been succesfully used by several Amazon sellers to get the complaint retracted :


We’ve been informed by Amazon.com (Complaint ID: XXX) on 04/14/2017 that (Name of complaining company) has filed a report of trademark infringement against us (storename) using Amazon’s report infringement form. Please see the enclosed copy of the notice from Amazon to (storename). We believe the allegations against (storename) to be false, as we have neither contributed nor uploaded any text or images to the Amazon listing in question (ASIN XXX). Multiple attempts have been made on our behalf to contact (Name of complaining company), using the email address provided in the notice (email: XXX). We have yet to receive a response of any kind.

We are requesting that (Name of complaining company) remove their claim against (storename) by 05/10/2017.

  • This can be done by emailing: notice-dispute@amazon.com.
  • Please reference Complaint ID: XXX.
  • Also reference our storefront name: (storefront name)

Should (complaining company) choose not to withdraw their complaint, we’d like a response to our request for information by 05/10/2017.

Requests for Information

  1. What trademark right did (storefront name) allegedly infringe?

  2. What registration(s) do you hold for the trademark identified in your claim? Please provide serial and registration numbers.

  3. How did (storefront name) infringe?

  4. What actions do you require on (storefront name’s) part to resolve this issue?

Selling on the Amazon.com platform accounts for 95% of our income stream. (Complaining company name’s) complaint against our storefront has resulted in Amazon placing our account under review. Should our account become suspended and (complaining companies name) not retract their claim and/or ignore our requests for information, we will hold (complaining company name) liable for any future loss of income or damages that may occur, as a result.

Regards,

I have had a similar case come up in the last few days. Of course every one told me get a lawyer. (the thread has been deleted for legal reasons). My local attorney told me he couldn’t handle a case dealing with software and Intelectual Property. He directed me to a lawyer from the big city. After getting an engagement letter quoting $315 per hour, and requesting a $5,000 retainer, I decided not to go that route.

I examined the claims and found them to be utterly ridiculous so I sent them a reply myself and am counting on them dropping the case. We’ll see. If anyone wants to know what my response was send me a PM. I’d rather not post it publicly.

There are two kinds of IP complaints : the right holder has a real copyright/trademark grievance, such as a few words in the listing infringing on his property. It is usually fairly easy to correct and if the guy is of good faith, he will tell you what the problem is, and retract his claim after you have corrected.
The other case is the frivolous complaint. Sometimes downright phoney. In that case,a letter clearly implying that the author of the complain will be held liable for damages suffices to get it off your back. What I posted has been used successfully by several Amazon sellers.

The recourse to a lawyer should be the last resort. However, in case you do need help with an IP lawyer that does not cost an arm and leg, you may check out Ivan Shatov. https://www.jussential.com/ Tell him I referred you.

If you were first to market, sounds like you should get their app removed >__< Don’t let their tree shaking scare you. Call their bluff and lawyer up later if need be. Deny guilt and admit nothing.

Thank you all for your valuable advice.

Currently traveling, it is difficult to quote many answers from this topic to give more information using my phone to write.

[quote=373453:@Christoph De Vocht]Forgotten to add:

You are aware you can do the same to him? It takes about 5 minutes to fill the form and Apple automatically sends the complaint to the developer. Apple does not check if the claim is valid or not.[/quote]
I never thought about that and won’t go that way as their app was on the market 3 years before mine. Furthermore their app seems to not have received any major update since Packr is out, I’m sure they are just jealous about the success of my app.
And they certainly didn’t expect another competitor to be around and make an app that would be more successful.

I will certainly write something along with @Markus Winter and @Michel Bujardet suggestions.

@JrmieLeroy
just for my curiosity, did you made Packr with Xojo ?

Yes @Jean-Yves Pochez it was my third iOS project made entirely with Xojo.

[quote=373450:@Markus Winter]DON‘T WRITE THAT!

That would basically be an admission of guilt.
[/quote]

Respectfully, I do not think so. As a bit of background, I’m Senior IP counsel (lawyer) for the worlds largest intellectual property filer, and have practiced in this field for longer than I care to admit. I suggested:

“Could you please clarify what, specifically, you see as infringing so that I can take appropriate action? If you have a patent or other IP on packing lists, I am happy to review them, but this is so broad and with packing applications dating back to task lists made for early versions of DOS, I’m just not sure what I am being accused of infringing on.” (or, If it makes you feel better, you can say “I dont think I am infriging on any of your intellectual property. Could you please clarify what, specifically, you see as infringing so that I can review the complaint? If you have a patent or other IP on packing lists, I am happy to review them, but this is so broad and with packing applications dating back to task lists made for early versions of DOS, I’m just not sure what I am being accused of infringing on.” )

You are trying to accomplish two things. First, you can demonstrate to apple that you are making a good faith effort to investigate the claim. There is always a chance that there is a patent/copyright/ etc. that is out there you are running afowl of. A small change to avoid the issue might save you alot of money in the future. Second, you want shift the burden to them to demonstrate that there is something behind this claim, other than a blanket assertion. There is no admission of guilt, only a promise to take appropriate action if there is something that you need to respond to. Since I work in this field I sometimes take for granted that when you say “specifically” what you really demanding is the IP document (patent, trademark, etc) that they are using as a basis for the complaint. If they do not respond with a specific document, you refer the matter back to Apple indicating that, after a good faith attempt to resolve the matter, the complaint lacks the specificity for you to act.

At the end of the day, a “blanket” assertion is meaningless, but you want to be able to demonstrate to Apple you made a good faith attempt to resolve the dispute, and that after you responded there was no basis for the complaint. This is one of those situations where you really dont know the basis for the complaint, and you dont want your app pulled for not responding appropriately. Your objective should be to comply with the rules, take appropriate action if there is a basis for the complaint, and not engage in unnecessary litigation that will be prohibitively expensive.

Clients have a knee-jerk reaction that a claim must be meritless (it is a troll, competitor, etc.) I get it, and I used to work for an NPE so Iunderstand where this coming from. But look at this from the perspective of Apple. They dont want to be involved in the possibility of an IP complaint, so help them (and you) stay out of it.

My 2c.

David, I appreciate you chiming in. I see we are basically advising similar approaches.

It is the first time I see a report of such occurrence in the App Store. It is commonplace on Amazon.

[quote=373510:@JrmieLeroy]Thank you all for your valuable advice.

Currently traveling, it is difficult to quote many answers from this topic to give more information using my phone to write.

I never thought about that and won’t go that way as their app was on the market 3 years before mine. Furthermore their app seems to not have received any major update since Packr is out, I’m sure they are just jealous about the success of my app.
And they certainly didn’t expect another competitor to be around and make an app that would be more successful.

I will certainly write something along with @MarkusWinter and @MichelBujardet suggestions.[/quote]

I bet they didn’t write it in Xojo, so it can’t be you “copied” their code. You can create a derivative of a publicly visible UI without knowing it even exist. Even if you would have known or seen their app before, it’s impossible that you have used/copied and/or taken their source code and recompile it in Xojo. That being said, your best bet is contacting a lawyer that knows IP-stuff well.

I can’t imagine that they even have standpoint that would be as they described. your UI is different and functionality is also different.
What you SHOULD do is note all the time you put into this IP claim. So if it comes to a court case you have something to get in return.

There is enough jurisprudence where litigation for copy of look and feel never succeeded.

The only thing that can successfully protect software is a patent. But I doubt extremely much the claimant in that case has one. They would be too happy to mention it.

However, having trademarked a few words is extremely effective to go after a competitor if he uses them. Even without a registered trademark, copyright exists the minute a document is created. For instance if you refer namely to “Packpoint” in your listing, they are entitled to claim unauthorized use of copyright.