3 ms·

To win on trade dress, Fab.com is going to have to prove that the design is distinctive, and that the average consumer associates the design with Fab.com Their

by learc83 14y ago

To win on trade dress, Fab.com is going to have to prove that the design is distinctive, and that the average consumer associates the design with Fab.com Their design is generic enough that I think it will be nearly impossible to prove distinctiveness. I'm sure that A Touch of Modern can find plenty of very similar sites to prove the design isn't distinctive. Additionally the design elements can't serve a utilitarian purpose--the clock icons next to the timer, and the price tags next to the price, clearly serve a utilitarian purpose. What else would you use to highlight a timer or a price?

slapshot 14y ago
> What else would you use to highlight a timer or a price? A different color font, a larger font, a colorful highlight, arrows, bullets, a speech balloon, quotation marks, an hourglass, a dollar sign, a picture of money... there are many other designs available. That doesn't mean that it's an automatic winner for Fab, but there are many other ways that ToM could have designed the site. > the design elements can't serve a utilitarian purpose When courts use "functional purpose" in the trade dress context, they usually mean things like product features that make the product work. For example, courts have ruled that things like the physical design of a conveyor belt can't be protected as trade dress (the "Value Engineering" case). I'm not sure that design elements that highlight certain information are "functional" in the way that a conveyor belt design is "functional." That said, it might not matter: in the "Clicks Billiards" case (2001), the Ninth Circuit held that a _combination_ of functional elements can be protected as trade dress: there, the combination of 37 elements of a billiards hall design were held to be eligible for protection even though some were undeniably functional (the presence of acoustic tiling on parts of the walls and a certain style of "drink rails") and some were pretty generic in isolation (one was "dark mahogany wood finishes"). The court ruled that the combination could still be protected. It looks like Fab is trying to make a similar argument here that the combination adds up to being too similar. (This lawsuit was filed in San Francisco, which is covered by the Ninth Circuit.)

by learc83 14y ago

slapshot 14y ago

> What else would you use to highlight a timer or a price? A different color font, a larger font, a colorful highlight, arrows, bullets, a speech balloon, quotation marks, an hourglass, a dollar sign, a picture of money... there are many other designs available. That doesn't mean that it's an automatic winner for Fab, but there are many other ways that ToM could have designed the site. > the design elements can't serve a utilitarian purpose When courts use "functional purpose" in the trade dress context, they usually mean things like product features that make the product work. For example, courts have ruled that things like the physical design of a conveyor belt can't be protected as trade dress (the "Value Engineering" case). I'm not sure that design elements that highlight certain information are "functional" in the way that a conveyor belt design is "functional." That said, it might not matter: in the "Clicks Billiards" case (2001), the Ninth Circuit held that a _combination_ of functional elements can be protected as trade dress: there, the combination of 37 elements of a billiards hall design were held to be eligible for protection even though some were undeniably functional (the presence of acoustic tiling on parts of the walls and a certain style of "drink rails") and some were pretty generic in isolation (one was "dark mahogany wood finishes"). The court ruled that the combination could still be protected. It looks like Fab is trying to make a similar argument here that the combination adds up to being too similar. (This lawsuit was filed in San Francisco, which is covered by the Ninth Circuit.)