Rival iPhone developers bicker over 'pull my finger'

Computerworld - A pair of iPhone developers who sell novelty applications that generate bodily function sound effects are squabbling over the phrase "pull my finger" in federal court, documents filed last week show.

Last Thursday, InfoMedia Inc., which developed the "iFart Mobile" program for the iPhone, filed a complaint for declaratory judgment against rival Air-O-Matic Inc., asking a federal court to rule that the phrase "pull my finger" is a "common descriptive phrase."

According to e-mails submitted to the court, InfoMedia was accused by Air-O-Matic of infringing the latter's trademark rights when it used "pull my finger" in its press release and other marketing materials, including text on its App Store listing within iTunes. Air-O-Matic is the maker of "Pull My Finger," another iPhone program that generates sounds of passing gas.

Previously, Air-O-Matic had complained to Apple Inc., which decides which applications are allowed into the App Store, and asked Apple to pull InfoMedia's software.

Calling InfoMedia's use of the phrase an "abuse of our trademark," a lawyer for Air-O-Matic asked Apple in early January to remove iFart Mobile from the online mart and strip InfoMedia of its iPhone developer rights, according to a copy of an e-mail included in the complaint. The lawyer also accused InfoMedia of "planting negative reviews of the apps of his competitors and positive reviews of his own ... and disparaging his competition with testimonials," as well as communicating with its own users via Twitter.

Apple eventually told the two companies to work out the problem between themselves, according to another e-mail attached to the complaint.

Air-O-Matic declined to do so. "Your client's actions have cost Air-O-Matic significant sales volume, revenues and now legal fees to rectify," read another document, dated Feb. 4, sent by Air-O-Matic lawyers to those representing InfoMedia. "Air-O-Matic is not ready to speak directly with your client because it has been financially harmed by InfoMedia's deliberate efforts to bump its app from its leading sales position on Apple though use of unfair trade tactics.

"Pull My Finger fell precipitously from being the No. 1 iPhone application as a direct result of InfoMedia's systemic efforts to profit from the Pull My Finger name and leverage the buzz around it," the document continued.

Separately, Air-O-Matic demanded that InfoMedia pay it $50,000 to settle the issue. "Naturally, as costs increase with the drawn-out process, the settlement figure would necessarily climb as well," an Air-O-Matic lawyer wrote.

Last week's filing was a preemptive move, said Joel Comm, president of InfoMedia. In a blog post on Thursday, Comm, author of several books on Internet marketing, said, "I was willing to negotiate with [Air-O-Matic], but I will not be harassed into paying them money just because our application was more popular and sold more units than theirs."

In its filing, InfoMedia asked that the court to rule that its use of "pull my finger" does not infringe on any rights of Air-O-Matic. "InfoMedia's use of the phrase 'pull my finger' was simply that of a descriptive phrase, is not protectable under federal trademark law as it is merely descriptive of the act of flatulence, [and] was fair use," the company said.

The behind-the-scenes maneuvering and legal wrangling is indicative of the strength of the iPhone App Store market. Although Apple does not provide sales figures for individual applications sold through its App Store, some developers have claimed to have made hundreds of thousands of dollars on their work. The maker of "iShoot," for example, recently told Wired that his $2.99 tank artillery game brought in $600,000 in a single month.

Comm has also disclosed some iFart Mobile numbers. Last Dec. 25, for instance, InfoMedia sold nearly 39,000 copies of the program, netting over $27,000 for the day after Apple took its customary 30%.

InfoMedia's iFart Mobile, which is priced at 99 cents, and Air-O-Matic's Pull My Finger, also 99 cents, are far from the only such choices at the App store; a search for similar apps found a surprising 98 different applications.

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