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Legal fight fuels tensions in tight-knit tech world

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A trademark-infringement case brought against App Press LLC threatens to smother the tech startup in legal fees before it reaches its potential.

And in a curious twist, the case also has generated grumblings in the tightknit developer community toward a big law firm that is representing App Press’ opponent in the federal court case.

Indianapolis-based Barnes & Thornburg LLP, whose clients include numerous Indiana tech entrepreneurs and which has supported local tech initiatives, is representing New York City-based Apress Media LLC against locally based App Press.

App Press was founded two years ago by 20-something wunderkinds Grant Glas and Kevin Smith. The duo’s software, accessed by customers over its website, allows graphic designers to create an app for mobile devices even if they don’t know how to write software code.

The product appears to have hit the bull’s-eye, based on reviews in such trade journals as PC Mag.com and the magazine of the Society of Publications Designers.

App Press has more than 100 recurring customers as far away as Australia. Also notable is that it has drawn a financial and advisory interest from Minh Nguyen, who — with Napster founder Sean Parker — created online address book and social media site Plaxo. Communication giant Comcast bought Plaxo in 2008.

Legal battles “can crush a company,” said Nguyen, now CEO of the software firm Syllabuster, who came to town to help Glas and Smith refine their product.

“To have all that taken away just because of some legal mumbo jumbo … Dude, it’s like taking away the name of your baby,” Nguyen said.

The potentially expensive legal battle began last year. That’s when Apress’ lawyers in Boston sent App Press a letter alleging the Indianapolis firm was trying to play off the trademarked Apress name recognition to appeal to designers and developers, “the very customers for our client’s goods and services.”

App Press’ lawyer, Jake Cox, disputed the trademark infringement claim. He said the two companies’ names are distinct enough and aren’t even pronounced similarly.

Apress used to be known as Author’s Press and describes itself as the “leading publisher” in programming resources for the iPhone, iPad and Android markets. Its customers use its publication to do such things as app coding.

The legal wrangling continued. An attorney for Apress responded to Cox that the fact that App Press is two words rather than one and is spelled differently is irrelevant from a trademark standpoint “because when the marks are pronounced in the normal course of conversation, they are likely to sound the same.”

With persistent cease-and-desist requests by Apress, App Press last May filed a complaint for declaratory relief in U.S. District Court for the Southern District of Indiana.

“Based on Apress Media’s recent conduct, App Press is faced with the choice of abandoning its right to use the registered trademark App Press or being sued for liability and damages regarding such use,” Cox said in the court filing.

Then, last July, Barnes & Thornburg entered the picture. It took on the case on behalf of Apress, filing a counterclaim and reasserting its claims App Press was guilty of trademark infringement.

“There is a risk that consumers and authors may mistakenly associate content published by App Press — lacking any meaningful content review or quality control — with Apress, thereby harming Apress’ reputation as a publisher of high-quality works,” an attorney for Barnes and Thornburg wrote.

The case is still pending. But word that Barnes & Thornburg was working against a local tech firm has circulated among developers, including those at Developer Town.

“I’m a big supporter of Grant and everything he’s doing,” said Michael Coffey, a partner at Developer Town. “The smart choice would be to back out of the case,” Coffey said of Barnes & Thornburg. If not, “it would lose a lot of credibility.”

He added that rival law firm Ice Miller would be happy to expand its services to the local tech community, which he calls “a very, very tight community.”

The law firm, in a statement, said it is reticent to discuss client matters publicly.

“Unfortunately, businesses can find that their interests conflict and sometimes this leads to disputes. When one of our clients is involved in a dispute, it’s our job to represent them,” said B&T.

“Our firm proudly supports the Indianapolis technology community. We have a long history of promoting a vigorous and healthy climate for all business and entrepreneurial activity in Indiana and beyond, and we will continue to do so in the future.”

Business is business, but the legal dispute has turned out to be a distraction for App Press.

“We took all the necessary steps,” Glas said of Apress’ challenge, noting that his firm successfully filed for and obtained a trademark.

He’s trying to look at the positive side, interpreting Apress’ challenge as a validation of sorts of App Press’ growing presence in the market.

Nguyen said Glas and Smith have been on the right track.

“They’ve done everything. They put in all the right tools. They’re collecting data from the users. To see that execution transfer into exponential growth and make money has been fascinating,” said Nguyen, who in recent years has coached about 10 companies.

Not only that, he tells the App Press team, “You guys haven’t [even] done any marketing.”

Such talk from a Silicon Valley rock star is affirming to Glas, who met Nguyen earlier this year at Distilled Intelligence, an event hosted in Washington, D.C.

After Glas’ pitch, App Press placed in the top 10.

At a cocktail party that followed, Nguyen, whom Glas didn’t know, approached him and told Glas he liked the company’s business model.

Later, “a reporter said, ‘Do you know who you were talking with?’” Glas recalled. “I went back up to him.”

Nguyen has been helping the firm refine its product offering as well as inspiring the duo to think big about the possibilities of growth.

“We’ve been here at least 13, 14 hours a day,” Nguyen said of his recent visit to Indianapolis.

“The development community here is pretty deep. I just didn’t know how deep,” he said. “Indiana has lots of startups. It’s a nice surprise, really.”

As for how this whole legal battle with Apress will turn out, at the least it will provide a good life lesson, said Developer Town’s Coffey.

Coffey was involved in a company that found itself in a battle against Connecticut-based United Technologies Corp., whose holdings include the locally based Carrier brand of HVAC systems. After his company created a product for UTC, the corporate giant insisted on partial rights to it.

It was a costly distraction, but his company eventually won its fight.

“Do we crowd-fund a legal defense?” Nguyen thinks, openly, back at the loft in Broad Ripple.

Like a protective uncle, he advises the local tech community to “band together and try to help these guys.”•

Originally published in Indianapolis Business Journal.

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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