ILNews

Legal fight fuels tensions in tight-knit tech world

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  2. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

  3. The story that you have shared is quite interesting and also the information is very helpful. Thanks for sharing the article. For more info: http://www.treasurecoastbailbonds.com/

  4. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  5. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

ADVERTISEMENT