Incense

by Bart Arondson

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I want to use a photo like below, but with a different screenshot for my product.
If I take a similar photo, can I still use an iPhone in the shot?

enter image description here

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I agree with MikeW in his comment in response to Aaron's answer. If possible, do not use another brand or trademark that is visible in photo of your product, especially since Apple has in the past went against other companies. Consult a lawyer or someone with relevant marketing experience. –  Global nomad Jan 31 '13 at 20:06
    
So what is your product? Is it an app for the iPhone, an accessory? –  MikeW Feb 2 '13 at 4:40

3 Answers 3

up vote 7 down vote accepted

If it is for an app in the App Store, then Apple has some pretty strict guidelines on what you can and cannot do with product images here: https://developer.apple.com/appstore/AppStoreMarketingGuidelines.pdf (iOS Developer account may be required to view)

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I am not a lawyer, but "nominative use" is a well-established affirmative defense against trademark infringement. That is, trademark grants a limited right to the owner, and not full ownership of the term. If you have an app which runs on the Apple iPhone, you can certainly say so legally even though both Apple and iPhone are trademarks. Likewise, you can show your app running on such a device. However, you can't do anything that will introduce customer confusion: you can't imply that your product is made by or endorsed by Apple.

If you ask Apple, they will probably claim protection greater than that actually afforded by law. That's the way these things work. If you have a contract with Apple, though — for example, if your product is an app distributed through their App store, or of you're part of the MFi accessory program — they can impose all sorts of additional restrictions beyond the basic legal protection, and you need to read that carefully (or better, have your lawyer do it).

If you're making an unlicensed product which is explicitly for the iPhone (a protective case, say, like this one), you're on pretty strong ground even if Apple says otherwise.

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I'm not real clear what you're asking. If you're asking if you can put something on the screen of an iphone, take a picture of the whole thing, and use that in marketing materials or brochures to sell something else, the answer is of course. Are you thinking that because there is an iphone you would have to pay a license fee to Apple for using their product in a photo you took? That is not the case at all.

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4  
So you're saying anyone is free to use an image containing a well known brand and use it for commercial use, without restriction? –  MikeW Jan 31 '13 at 19:59
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I wonder if there's an exception if the product in question is an app in the apple App Store? I've seen quite a few apps advertised like that. –  ElendilTheTall Jan 31 '13 at 21:21
    
I think this is tricky. I know about actual fights between companies because one (let's say an insurance) used a product (let's say a bottle of Champagne) in their ads in a way where you could recognize the brand. The Champagne company asked for licensing rights for that picture. –  uncovery Feb 1 '13 at 4:40
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Contact Apple, and get something in writing if they give you the go-ahead. It's the only way you can be sure. –  ElendilTheTall Feb 1 '13 at 7:01
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@MikeW from that URL: 'Infringement depends upon whether the trademark itself is used to sell the photograph, and whether sponsorship or endorsement of the trademark owner is implied.'. I guess I'm on the mindset of 'If an iphone happens to be in the picture, it happens to be in the picture' stance. –  Aaron Feb 1 '13 at 20:37

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