My Nectar app for Android, the story, the legal threat

This shorty story/dialog will answer questions you may have as to the sudden disappearance of ‘My Nectar’ the Android app

In January I released the ‘My Nectar’ app to give collectors of nectar points quick access to their points balance on their Android phones, the app was listed absolutely free, all my development costs were paid for out of my own pocket, aren’t I just a nice guy. The official Nectar app released in the late summer of 2010 was and still is only available for Apple’s iOS.

Whilst the app is simple, I figured it would be useful for others that regularly collect nectar points, avoiding the need to visit their bloated website, it would be nicely to quickly get information about your points balance.

Feedback after the release was mostly good, a few people complaining it didn’t do much, true but it did to everything it was supposed to, unlike plenty of other apps out there.

Early evening yesterday (16th Feb 2011), I received the following email from Alex Schajer, Head of Digital Technology at Groupe Aeroplan Inc. the Canadian parent company of Nectar

Hello Rob,

Thank you for your interest and enthusiasm in building an Nectar Android
app. We appreciate that you have spent some time developing this app but
we would ask you to please remove the app from the Android Market. There
will be an official Android app available shortly featuring all of the
functions of the iPhone version. Please bear with us whilst we go
through the final rounds of testing.

Can you please respond within the next few days to let me know that you
have removed the app from the Android Market,

Many thanks,

Alex Schajer
Head of Digital Technology

Whilst the email from Alex was fairly polite, I felt quite insulted, I was trying to do a good thing, helping their customers infact, for absolutely no financial gain of my own.

Hurt, I sent a brief reply back to Alex.

Sorry but sending this email does not show appreciation at all. I don’t see the problem?
The android market is an open free platform. I’m not doing anything illegal. The app is free and merely helping your customers get some simple information on their android phone.

Regards
Rob

After sleeping (or not sleeping) on the Alex’s email, I thought, maybe I was a little hostile with my reply so I followed up my reply with the following

Morning Alex,
I have been thinking about your email last night.
I appreciate that maybe you don’t want people to find my app over yours.

As you correctly mentioned, I have spent a considerable amount of my
personal free time producing the app to fill a hole left by the lack
of an Android app, many people have found this a simple useful tool to
quickly lookup their current points balance, I made the app out of
love for shopping and collecting points, for no personal monetary
gain, as you already know, the app is offered on the Android Market
free of charge.

I would be happy to remove the app from the Android Market and provide
you with the app’s code,
and transferring ownership of my app to you for a small token gesture from
you of 1000GBP

I look forward to hearing from you.

Regards,
Rob

I reasonable request, I’d put a lot of time and effort into creating and supporting the app, I though only fair that if I was to be bullied out of the free open platform for which I’ve paid my $25 developer fee just like the next, I should be given something as a token gesture for my Love for Nectar and helping to improve their service for the Android audience they decided to neglect in the first place.

//update
A few days passed with no reply from Alex
Then on the 21st Feb 2011, I received the following email from Jeremy Henderson-Ross, Legal Director & General Counsel at Groupe Aeroplan Inc.

Rob

It has come to my attention that you have launched a Nectar ‘app’ on the Android Market which uses the Nectar brand.

Loyalty Management UK Limited (“LMUK”) owns numerous registered trade marks for the word “Nectar” in the United Kingdom and the European Union. Details of our registered UK trade marks and CTMs are available online at the UKIPO and OHIM websites. Nectar is therefore LMUK’s brand in the loyalty programme sector and we take the protection of our brand very seriously. As a result, we take a very serious view of your app and use of the Nectar brand and consider these acts to be an infringement of our rights

In addition your app is likely to confuse people into believing that the Nectar app is registered to, operated or authorised by, or otherwise connected with LMUK. This amounts to trademark infringement and the common law tort of passing off and entitles us to commence legal proceeding for trademark infringement and/or passing off to prevent you continuing such use of the Nectar app.

These infringements of our rights are unacceptable to us. We would prefer to resolve this matter with you on an amicable basis without the need for legal proceedings. On this basis we require you to cease marketing and use of the Nectar app immediately.

In the meantime, we reserve all rights in this matter.

Kind regards

Jeremy Henderson-Ross
Legal Director & General Counsel – Groupe Aeroplan EMEA

Ok, now we’re starting to get heavy, getting their Legal Director involved. Yes I used the word Nectar in the app a trademark LMUK own. But seriously I’m not trying to compete, I haven’t started my own Loyalty scheme called nectar, I’m providing a simple app to improve their service since they don’t have an Android app of their own.

I’m don’t know much about trademarks and all that boring legal shit, I’m just a happy, normal guy, who wanted to help the people who use nectar that have an Android phone. I certainly never meant step on anyone’s toes, I’m not charging for the app, I make no revenue at all from the app, it actually costs me money :/ I mean how stupid must I be?
I really don’t see how it’s passing off, maybe If I was using their brand to sell jars of honey or something even then, their trademark only covers use for classes 9, 16, 35 updated in 2002 to include 39. None of which relate to foot products.

ramble ramble ramble…

Jeremy appeared to know little about my app, and it’s function. The app clearly states in the description and in the app’s about screen that it is a 3rd party application and in no way affiliated with Nectar and the other relevant companies.

Description on Google's Android Market
My Nectar About screen

Jeremy also appeared to have not been made aware of my previous emails to Alex.
I wrote back.

Without prejudice:

Dear Jeremy,

Thank you for your email. As you may or may not be aware, I’ve already sent an email to Alex Schajer and am still waiting for a response.

In response to your claims, if you’ve seen my app, you will be aware that it is my intention to create something that is of use to people who use your service, and certainly never to ‘pass off’ or any ‘infringement of your rights’. Any lay user of the app would be completely aware of this before and during any use of the app.

Designing and building apps is a time consuming and expensive business, and although I am not benefiting financially from this app, it has still cost me money to develop. I would be willing to remove the app from the Android Market if you were to make a small token gesture of remuneration for the effort I’ve put in to the design and build of the app to date. As I have said to Alex Schajer, if you pay me £1000 I will remove the app immediately, and will even give you the source code should you wish to use it for future development.

This token sum will bring the matter to an amicable close and we can all carry on our business as usual.

I look forward to hearing back from you.

Kind regards,

Rob

Reiterating my earlier proposal made to Alex for a small gesture as a thank you for putting my hard work and time into improving their service.

Jeremy replied swiftly

Rob

I am aware of your previous email correspondence with Alex Schajer. We absolutely reject your requirement of a payment to cease using our trade marks in breach of the intellectual property laws I detailed in my previous email. Please confirm that you are to cease use of the app immediately otherwise we will have no other option but to commence legal proceeding for trademark infringement and/or passing off – a course of action we would very much like to avoid.

Kind regards

Jeremy Henderson-Ross
Legal Director & General Counsel – Groupe Aeroplan EMEA

If course he’d like to avoid legal action, it would start to cost them money.
But what’s in it for me for bending over now?

Nothing it seems.

//update2
After much deliberation I have decided to unpublished the ‘My Nectar’ app from the Android Market, I feel like this is giving up, maybe I should have taken it further.
With hindsight I don’t have a fancy title and a large customer focused corporation supporting my efforts.

I was simply trying to do something out of the goodness of my heart for absolutely no personal gain.
As it’s the life of the ‘My Nectar’ app has come to an end very quickly, I’d like to thank everyone who downloaded ‘My Nectar’ and emailed me with feedback, good and bad, feedback helps keep apps user focused and bug free, so thanks to all of you.

Bullies never should never win, but in this case I’ve decided the bully is just too big to fight.

Rob
@robaldred

//As of 22 Feb 2011, the “Official” Nectar app for Android is still no where to be seen.