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Protecting customers from misrepresentation – unknowingly being sold something that does not match the logo stamped on it: fine; protecting a megacorp from its

by Tobu 14y ago

Protecting customers from misrepresentation – unknowingly being sold something that does not match the logo stamped on it: fine; protecting a megacorp from its competitors selling something with similar design, but a different brand name: customers lose.

Xuzz 14y ago
That's a reasonable opinion, but it's not how that type of intellectual property works. Again, Nilay Patel (a lawyer, fwiw) at The Verge: Trade dress is the wonky red-headed step-cousin of the family that fills the gaps between the three; you might think of it as a trademark on design elements that trigger consumer recognition. [...] Apple's claim is that the iPhone's box and design scream "Apple" to consumers just as strongly as the word "iPhone."
- Tobu 14y ago
  This kind of legal weapon is just emerging, and it's a product of circumstance — patent offices have rubberstamped hundreds of Apple's bevelled rectangles, and Apple recently found a court that would act on it and delay sales. It's a bit early to say lawyers have it all figured out, and that we should shut up and listen to them. Consequences matter, the intent and spirit of the law matter — lobbying, laws, case law, patents and injunctions are decided by humans — which is why it's important to counteract the claim you quote, that this is about protecting customers from being confused about what they're buying.
  - Retric 14y ago
    If by 'new' you mean 1946 then sure: http://en.wikipedia.org/wiki/Lanham_Act http://en.wikipedia.org/wiki/Lanham_Act
    - Tobu 14y ago
      That's trademarks, which so far have been more faithful to their stated goal of preventing consumer confusion, rather than creating new kinds of private property. For example, I don't need Apple's permission to use the trademarked word Apple, as long as I'm referring to the firm, or as long as I'm not using it in the context of electronics or music.
  - Xuzz 14y ago
    Again, Nilay Patel at The Verge (maybe read the article? http://theverge.com/2011/04/19/apple-sues-samsung-analysis/ http://theverge.com/2011/04/19/apple-sues-samsung-analysis/): Trade dress law is well-established, and Apple itself has a history of successfully pursuing trade dress claims in the Northern District of California. In 2000 the company sued both eMachines and a company called Future Power for knocking off the iMac's trade dress, winning injunctions in both cases and eventually getting extremely restrictive settlements that effectively removed the infringing products from the marketplace. The eOne: http://lowendmac.com/imac/eone.shtml http://lowendmac.com/imac/eone.shtml Article about the case: http://zdnetasia.com/apple-stops-sales-of-imac-knockoffs-13026345.htm http://zdnetasia.com/apple-stops-sales-of-imac-knockoffs-130...
    - Tobu 14y ago
      The 2011 case featured in the Verge bundles trade dress claims, that have been enforced in the past with a less simple and much more distinctive look, with design patents, which I'm not aware Apple has been able to enforce before. The other one we discussed is for a European “community design”, something which was created (sorry, “harmonised”) in 2002, and those extremely simple shapes were registered by Apple in 2010: http://www.scribd.com/doc/61944044/Community-Design-000181607-0001 http://www.scribd.com/doc/61944044/Community-Design-00018160... Here is what makes community designs a step up from other roadblocks against competitors: http://www.osnews.com/story/25056/The_Community_Design_and_you_Thought_the_USPTO_Was_Bad/page1/ http://www.osnews.com/story/25056/The_Community_Design_and_y...
karlshea 14y ago
You'd be right, but it wasn't "similar" design. They weren't sued because it was a black rectangle. This is closer to flipping the Pepsi logo upside-down and selling cola, then bitching about how unfair the patent and trademark system is.
- ajross 14y ago
  The iPhone's design is mostly functional, it's not artwork like a logo. You can't copy a logo for clear reasons. A closer analog would be selling, say, a cola in a 12 oz. blue, red and white can with white lettering: http://goo.gl/q5k8n http://goo.gl/q5k8n
  - karlshea 14y ago
    Well, it sort of is like artwork since they registered the design patent. At a glance, the RC Cola can doesn't look like Pepsi. Some of the Samsung phones do however look like iPhones, and infringe on all of the conditions mentioned in the patent. This case mirrors the eMachines case where they were selling something that looked pretty similar to an iMac.
    - PGenes 14y ago
      "sort of is like artwork" isn't artwork.

by Tobu 14y ago

Xuzz 14y ago

That's a reasonable opinion, but it's not how that type of intellectual property works. Again, Nilay Patel (a lawyer, fwiw) at The Verge: Trade dress is the wonky red-headed step-cousin of the family that fills the gaps between the three; you might think of it as a trademark on design elements that trigger consumer recognition. [...] Apple's claim is that the iPhone's box and design scream "Apple" to consumers just as strongly as the word "iPhone."

Tobu 14y ago
This kind of legal weapon is just emerging, and it's a product of circumstance — patent offices have rubberstamped hundreds of Apple's bevelled rectangles, and Apple recently found a court that would act on it and delay sales. It's a bit early to say lawyers have it all figured out, and that we should shut up and listen to them. Consequences matter, the intent and spirit of the law matter — lobbying, laws, case law, patents and injunctions are decided by humans — which is why it's important to counteract the claim you quote, that this is about protecting customers from being confused about what they're buying.
- Retric 14y ago
  If by 'new' you mean 1946 then sure: http://en.wikipedia.org/wiki/Lanham_Act http://en.wikipedia.org/wiki/Lanham_Act
  - Tobu 14y ago
    That's trademarks, which so far have been more faithful to their stated goal of preventing consumer confusion, rather than creating new kinds of private property. For example, I don't need Apple's permission to use the trademarked word Apple, as long as I'm referring to the firm, or as long as I'm not using it in the context of electronics or music.
- Xuzz 14y ago
  Again, Nilay Patel at The Verge (maybe read the article? http://theverge.com/2011/04/19/apple-sues-samsung-analysis/ http://theverge.com/2011/04/19/apple-sues-samsung-analysis/): Trade dress law is well-established, and Apple itself has a history of successfully pursuing trade dress claims in the Northern District of California. In 2000 the company sued both eMachines and a company called Future Power for knocking off the iMac's trade dress, winning injunctions in both cases and eventually getting extremely restrictive settlements that effectively removed the infringing products from the marketplace. The eOne: http://lowendmac.com/imac/eone.shtml http://lowendmac.com/imac/eone.shtml Article about the case: http://zdnetasia.com/apple-stops-sales-of-imac-knockoffs-13026345.htm http://zdnetasia.com/apple-stops-sales-of-imac-knockoffs-130...
  - Tobu 14y ago
    The 2011 case featured in the Verge bundles trade dress claims, that have been enforced in the past with a less simple and much more distinctive look, with design patents, which I'm not aware Apple has been able to enforce before. The other one we discussed is for a European “community design”, something which was created (sorry, “harmonised”) in 2002, and those extremely simple shapes were registered by Apple in 2010: http://www.scribd.com/doc/61944044/Community-Design-000181607-0001 http://www.scribd.com/doc/61944044/Community-Design-00018160... Here is what makes community designs a step up from other roadblocks against competitors: http://www.osnews.com/story/25056/The_Community_Design_and_you_Thought_the_USPTO_Was_Bad/page1/ http://www.osnews.com/story/25056/The_Community_Design_and_y...

karlshea 14y ago

You'd be right, but it wasn't "similar" design. They weren't sued because it was a black rectangle. This is closer to flipping the Pepsi logo upside-down and selling cola, then bitching about how unfair the patent and trademark system is.

ajross 14y ago
The iPhone's design is mostly functional, it's not artwork like a logo. You can't copy a logo for clear reasons. A closer analog would be selling, say, a cola in a 12 oz. blue, red and white can with white lettering: http://goo.gl/q5k8n http://goo.gl/q5k8n
- karlshea 14y ago
  Well, it sort of is like artwork since they registered the design patent. At a glance, the RC Cola can doesn't look like Pepsi. Some of the Samsung phones do however look like iPhones, and infringe on all of the conditions mentioned in the patent. This case mirrors the eMachines case where they were selling something that looked pretty similar to an iMac.
  - PGenes 14y ago
    "sort of is like artwork" isn't artwork.