trademark
WhatsAPI Use for iOS App - legal/illegal ? &amp; Specific boundaries?
<p>I don't know if this is the right place for this question or if there is a better one, if so, please forgive me :) </p>

<p>I recently bought an Apple Watch and soon enough found out that WhatsApp does not support the Watch, which made me kind of sad. Since i'm a software developer, I had the idea of simply building and distributing such an app through the app store for the other watch owners that felt the same. After searching a little bit, I found some code that I could get working which interacts with <a href="http://web.whatsapp.com" rel="nofollow noreferrer">web.whatsapp.com</a>, but also stumbled upon <a href="https://github.com/venomous0x/WhatsAPI" rel="nofollow noreferrer">this</a> repository where the developer seems to have gotten into trouble with the WhatsApp Inc.</p>

<p>Since I am not experienced in any kind of law (especially not american), I wanted to ask whether it is allowed to build such an app (in general). Where the boundaries of that are, especially for making profit of it, like: In-App-Advertisment, Donations or other ways of making profit. Another interesting thought on profit was to make a website that acts as landing page, that has advertisment on it, what about that ? </p>

<p>As far as I know I am also not allowed to use the Trademark "WhatsApp", any name that is close to "WhatsApp" or their logo or a logo that is looks too similar to the WhatsApp Logo ?</p>

<p>I know that are many questions and it's probably super specific, but that's why I would be even more stoked if somebody could answer them! Thanks in advance!</p>

<p>When you download any SDK, it will most likely come with a license that will tell you exactly what you are allowed to do with the SDK. You'd need to read the license. It will hopefully be designed to be interpreted correctly by non lawyers. To be safe, you'd need to present it to a lawyer and pay them for advice. </p>

<p>Without knowing details, it is impossible to say why exactly that other developer got into trouble for. If you can find out something, then you know what you should avoid. Best advice would be to not step on their toes, and to not do anything that would annoy the company. </p>

<p>Intellectual property law is very convoluted when it comes to software. It is important to note the type of license associated with your software, as many publicly available SDKs and programs use the <a href="https://opensource.org/licenses/MIT" rel="nofollow noreferrer">MIT license</a> (in which monetization is legal), but many others also use the <a href="https://creativecommons.org/licenses/by/4.0/" rel="nofollow noreferrer">CCBY-4 license</a>, which contains more restrictions on attribution, sales, and distribution.</p>
<p>It is also important to note the policy of the marketplace in which you intend on publishing your work. The <a href="https://developer.apple.com/app-store/review/guidelines/" rel="nofollow noreferrer">App Store Developer Guidelines</a> identify the following important considerations:</p>
<blockquote>
<p>4.1 Copycats: Come up with your own ideas. We know you have them, so make yours come to life. Don’t simply copy the latest popular app on the App Store, or make some minor changes to another app’s name or UI and pass it off as your own. In addition to risking an intellectual property infringement claim, it makes the App Store harder to navigate and just isn’t fair to your fellow developers.</p>
</blockquote>
<blockquote>
<p>4.2 Minimum Functionality: Your app should include features, content, and UI that elevate it beyond a repackaged website. If your app is not particularly useful, unique, or “app-like,” it doesn’t belong on the App Store. If your App doesn’t provide some sort of lasting entertainment value or adequate utility, it may not be accepted.</p>
</blockquote>
<blockquote>
<p>4.2.6 Apps created from a commercialized template or app generation service will be rejected unless they are submitted directly by the provider of the app’s content.</p>
</blockquote>
<p>Good luck!</p>
<p><strong>For the bounty:</strong></p>
<blockquote>
<p>Can someone please explain, how WhatsAPI could be taken down (see github.com/venomous0x/WhatsAPI )? Is it illegal? What is the allegation?</p>
</blockquote>
<p>The WhatsAPI closing statement references the Computer Fraud and Abuse Act (CFAA), components of which are codified in <a href="https://www.law.cornell.edu/uscode/text/18/1030" rel="nofollow noreferrer">18 USC 1030</a>. Some potentially unlawful elements (in my opinion, none of which convincing), include:</p>
<blockquote>
<p>Whoever—(5)
(A) knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer;
(B) intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage; or
(C) <strong>intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage and loss.</strong></p>
</blockquote>
<p>where <em>computer</em> is defined as:</p>
<blockquote>
<p>(1) the term “computer” means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and <strong>includes any data storage facility or communications facility directly related to or operating in conjunction with such device</strong>, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device;</p>
</blockquote>
<p>and where <em>protected computer</em> is defined as:</p>
<blockquote>
<p>(2) the term “protected computer” means <strong>a computer—</strong> (A) exclusively for the use of a financial institution or the United States Government, or, in the case of a computer not exclusively for such use, used by or for a financial institution or the United States Government and the conduct constituting the offense affects that use by or for the financial institution or the Government; <strong>(B) which is used in or affecting interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States</strong>; or (C) that— (i) is part of a voting system; and (ii) (I) is used for the management, support, or administration of a Federal election; or (II) has moved in or otherwise affects interstate or foreign commerce...</p>
</blockquote>
<p>Finally, civil remedy is authorized:</p>
<blockquote>
<p>(g) Any person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or other equitable relief.</p>
</blockquote>

<p>But name <em>WhatsAPI</em> similarity to trademark <em>WhatsApp</em> I can see only one reason for which the project could be taken down (IANAL though).  It is providing tool for spammers.</p>
<p>In the <a href="https://github.com/abdosumsam/WhatsAPI/blob/master/README.md" rel="nofollow noreferrer">README of abdosumsam's fork</a> spammers are addressed since Feb 20, 2013:</p>
<blockquote>
<h3>Foreword</h3>
<p>F*** spammers. If you're one of them, or you operate shady marketing campaigns, please get lost.</p>
</blockquote>
<p>In <a href="https://github.com/yuvadm/WhatsAPI/blob/master/README.md" rel="nofollow noreferrer">README of yuvadm's fork</a> you can read:</p>
<blockquote>
<h3>Note July 30th, 2013</h3>
<p><em>New policy:</em></p>
<p><em>I no longer provide support to users who are trying to send bulk messages using this API (i.e. a large amount of messages and not the
built-in bulk message functionality).</em>
<em>Sending advertisments on WhatsApp goes directly against their EULA and I have no way of determining whether the user is trying to send
spam, advertising or sending mass messages to &quot;opt-in users&quot;.</em>
<em>And I also don't want to waste the little spare time that I have on trying to figure out ways to fuck up this beautiful ad-free platform
called WhatsApp by enabling people to send spam.</em>
<em>Everyone is free to use this API but there will be no more issue reports about being blocked after sending messages to semi-random
users.</em></p>
<p><em>In the famous words of Heath Ledger as the Joker (taken completely out of context by me):</em></p>
<p><strong>It's not about the money, it's about sending a message.</strong></p>
<p><em>- <a href="https://github.com/shirioko" rel="nofollow noreferrer">shirioko</a></em></p>
</blockquote>
<p>In the <a href="https://github.com/github/dmca/commit/7c41a8e32a7bc4e3e5f4319e06bf7429c0fb5140" rel="nofollow noreferrer">7c41a8e32a7bc4e3e5f4319e06bf7429c0fb5140 commit to github/dmca repository</a> you can find a DMCA takedown notice received by GitHub:</p>
<blockquote>
<p>I have reviewed the infringing providers, content, and code
(&quot;content&quot;) posted or referred to on GitHub, and there continues to be
an extensive amount of content that infringes on WhatsApp Inc.'s
copyrights and trademarks.  This continues to cause significant harm
to WhatsApp.</p>
<p>By this email, please accept this formal notice and takedown request
for the following content on the GitHub site.  I am starting with
these requests to ensure you will take action on our request.  We will
have follow-on requests, as the list of infringing content below is
not exhaustive.</p>
<p>Specifically:</p>
<ol>
<li><p>The following URLs use of the WhatsApp name and logo, use of other WhatsApp content, unauthorized use of WhatsApp APIs, software,
and/or services, and provision of software and services related to
WhatsApp infringes on WhatsApp's copyrights and trademarks, including
those related to WhatsApp's name and logo. WhatsApp's trademarks are
registered in the United States and countries throughout the world.</p>
</li>
<li><p>The initial infringing content is located at:</p>
</li>
</ol>
<p><a href="https://github.com/venomous0x/WhatsAPI" rel="nofollow noreferrer">https://github.com/venomous0x/WhatsAPI</a></p>
<p>[a long list of other repositories]</p>
<ol start="3">
<li><p>WhatsApp has a good faith belief that the infringing content is not authorized by WhatsApp, a WhatsApp agent, or the law.</p>
</li>
<li><p>The information contained in this notice is accurate and, under penalty of perjury, I am authorized to act on behalf of WhatsApp,
which is the owner of the exclusive copyright and/or trademark rights
that are being infringed.</p>
</li>
</ol>
<p>Please let me know if you have any questions.  Also, I would
appreciate your confirming that you have received this and whether you
will take action to remove these providers and this content.</p>
<p>Thank you again very much for your time and assistance.</p>
<p>Sincerely,</p>
<p>[private]</p>
<p>General Counsel</p>
<p>WhatsApp Inc.</p>
<p>[private]</p>
</blockquote>
<p>Since all forks are back at least since March 15th, 2014, it seems that the notice failed to have any long-term effect.</p>
