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But should you really be allowed to trademark industrial design? Consider Dell XPS ultrabooks. They are obviously designed to look like a Macbook, but with a De

But should you really be allowed to trademark industrial design? Consider Dell XPS ultrabooks. They are obviously designed to look like a Macbook, but with a Dell logo instead of the Apple logo (http://cdn-static.cnet.co.uk/i/product_media/40002464/image3/440x330-dell-xps-14-ultrabook-back.jpg http://cdn-static.cnet.co.uk/i/product_media/40002464/image3...). Or think about sport cars, Ferrari has a trademark for their horse logo, but they don't have a monopoly on "a sport car painted red". I think that is the ideal tradeoff---the logo lets a consumer know what they are buying, but you should still be allowed to buy cheap products that look stylish...

wernercd 13y ago
Should T-Mobile be able to trademark the color Magenta and prevent AT&T from using it? The court says yes: http://www.androidpolice.com/2014/02/08/t-mobile-wins-lawsuit-against-atts-aio-wireless-for-magenta-trademark-infringement/ http://www.androidpolice.com/2014/02/08/t-mobile-wins-lawsui... Why would this be different? Using a known, good name brand like Fluke or T-Mobile... and diluting it's name by making confusing, derivative and lesser products. Using the color yellow shouldn't be off limits... but using yellow (or magenta) to confuse consumers should be.
rayiner 13y ago
Industrial design cannot be protected, but trade dress can. Trade dress protection is available when a particular, arbitrary and non-functional, design becomes distinctive of a product. For these aspects of design to be protected, it must actually be distinctive of the product (i.e. you can't just claim a mark on the gray/yellow combination, but you have to show, usually through surveys, that the market identifies that design with your product). Industrial design usually won't qualify because it's functional. The color comes from the use of aluminum, aluminum is used for its structural properties, particular colors have more aesthetic value in the market, etc. Trade dress has to be more specific, not functional, and arbitrary. A classic example is pink for Owens-Corning insulation. It's a totally arbitrary color choice for a product where aesthetics doesn't factor into buyers' choices, and had become strongly associated in the public with Owens-Corning's brand. If there was a functional reason for the pink color, or it was a situation where people would prefer a certain color for aesthetic reasons, the design choice wouldn't have been eligible for protection.
- pilom 13y ago
  A second example of trade dress is Coca-Cola red and white with the cursive font. For instance, this shirt [1] in red almost certainly violates Coca-Cola's trade dress. [1] http://www.cafepress.com/mf/34611212/enjoy-capitalism_tshirt?productId=448247249 http://www.cafepress.com/mf/34611212/enjoy-capitalism_tshirt...
  - Floegipoky 13y ago
    Doesn't fair use apply to this?
  - leephillips 13y ago
    Perhaps if the shirt is also a soft drink. Otherwise I think the likelihood of consumer confusion is pretty slim.
    - pilom 13y ago
      In the case of the shirt, there isn't confusion about if it is a soft drink, but a lawyer could successfully argue that a customer might buy the shirt thinking it was a coca-cola shirt. If the coca-cola trade dress did not exist, it is extremely unlikely that a shirt with that design would be marketed.
landhar 13y ago
I'm not a lawyer, but I remember being told during an introductory class to business law in school that the definition of what makes a trademark can be whatever is considered to be so tied to the brand identity that people would immediately assume that the product belongs to the brand. In the case of the Macbooks vs Dell XPS ultrabooks you could argue that what makes people recognize a Macbook is as much the glowing white apple logo as the aluminum case so people are not being fooled when they see a Dell XPS into thinking it's a Macbook. Similarly, people don't immediately assume that a sport car painted red is a Ferrari. But if they were to see a car with a Ferrari logo (regardless of its color) they would most certainly assume that it's a Ferrari. In short, it's my understanding that trademarks are by definition somewhat subjective. However I believe that the intention is a good one, as it protects as much customers than brands.
- Fuxy 13y ago
  If there weren't so may multimeters with the same color scheme out there I would agree with you but there are. Fluke is not the first one to use the color scheme they were just the first to apply for a patent on it. Even if they were they didn't enforce it until now so it became the general color scheme of all multimeters not just Fluke multimeters.
  - chc 13y ago
    I really think you're overstating your case. https://www.google.com/search?q=multimeter&safe=on&client=firefox-a&hs=KWg&rls=org.mozilla:en-US:official&channel=fflb&source=lnms&tbm=isch&sa=X&ei=_NEpU9rKNsLxoASCw4GoBQ&ved=0CAoQ_AUoAg&biw=1240&bih=615#imgdii=_ https://www.google.com/search?q=multimeter&safe=on&client=fi... Most of the ones that look like a Fluke are indeed a Fluke.
    - Fuxy 13y ago
      Well on google images there's quite a few however if you look here [1] very few are actually a Fluke. [1] http://www.amazon.co.uk/s/ref=nb_sb_noss_2?url=search-alias%3Daps&field-keywords=multimeters http://www.amazon.co.uk/s/ref=nb_sb_noss_2?url=search-alias%...
hapless 13y ago
It's called "trade dress." You absolutely are allowed, and this is probably a good thing. In the case of a durable tool, like a multimeter, the industrial design serves the same purpose packaging does for normal consumer goods. Let me turn the question around: "Should you really be allowed to trademark your packaging?"
Spooky23 13y ago
I think that a better example is Coke -- their bottle shape is a user-friendly design that is easy to hold onto, but more importantly it has become an iconic symbol of Coke the brand. I think in the case of Apple, they iterate so often on basic laptop design that having trademarked trade dress around a laptop would be counter-productive. They always want their devices to be thinner and lighter, and that requires fundamental changes to the design (wedge shapes, unibody, etc) With the Dell laptop, what really makes it look like Apple? It's silver and thin. There are literally dozens of vendors shipping thin, silver devices.
deletesystem32 13y ago
> Good design adds and means nothing Yeah… nah

wernercd 13y ago

Should T-Mobile be able to trademark the color Magenta and prevent AT&T from using it? The court says yes: http://www.androidpolice.com/2014/02/08/t-mobile-wins-lawsuit-against-atts-aio-wireless-for-magenta-trademark-infringement/ http://www.androidpolice.com/2014/02/08/t-mobile-wins-lawsui... Why would this be different? Using a known, good name brand like Fluke or T-Mobile... and diluting it's name by making confusing, derivative and lesser products. Using the color yellow shouldn't be off limits... but using yellow (or magenta) to confuse consumers should be.

rayiner 13y ago

Industrial design cannot be protected, but trade dress can. Trade dress protection is available when a particular, arbitrary and non-functional, design becomes distinctive of a product. For these aspects of design to be protected, it must actually be distinctive of the product (i.e. you can't just claim a mark on the gray/yellow combination, but you have to show, usually through surveys, that the market identifies that design with your product). Industrial design usually won't qualify because it's functional. The color comes from the use of aluminum, aluminum is used for its structural properties, particular colors have more aesthetic value in the market, etc. Trade dress has to be more specific, not functional, and arbitrary. A classic example is pink for Owens-Corning insulation. It's a totally arbitrary color choice for a product where aesthetics doesn't factor into buyers' choices, and had become strongly associated in the public with Owens-Corning's brand. If there was a functional reason for the pink color, or it was a situation where people would prefer a certain color for aesthetic reasons, the design choice wouldn't have been eligible for protection.

pilom 13y ago
A second example of trade dress is Coca-Cola red and white with the cursive font. For instance, this shirt [1] in red almost certainly violates Coca-Cola's trade dress. [1] http://www.cafepress.com/mf/34611212/enjoy-capitalism_tshirt?productId=448247249 http://www.cafepress.com/mf/34611212/enjoy-capitalism_tshirt...
- Floegipoky 13y ago
  Doesn't fair use apply to this?
- leephillips 13y ago
  Perhaps if the shirt is also a soft drink. Otherwise I think the likelihood of consumer confusion is pretty slim.
  - pilom 13y ago
    In the case of the shirt, there isn't confusion about if it is a soft drink, but a lawyer could successfully argue that a customer might buy the shirt thinking it was a coca-cola shirt. If the coca-cola trade dress did not exist, it is extremely unlikely that a shirt with that design would be marketed.

landhar 13y ago

I'm not a lawyer, but I remember being told during an introductory class to business law in school that the definition of what makes a trademark can be whatever is considered to be so tied to the brand identity that people would immediately assume that the product belongs to the brand. In the case of the Macbooks vs Dell XPS ultrabooks you could argue that what makes people recognize a Macbook is as much the glowing white apple logo as the aluminum case so people are not being fooled when they see a Dell XPS into thinking it's a Macbook. Similarly, people don't immediately assume that a sport car painted red is a Ferrari. But if they were to see a car with a Ferrari logo (regardless of its color) they would most certainly assume that it's a Ferrari. In short, it's my understanding that trademarks are by definition somewhat subjective. However I believe that the intention is a good one, as it protects as much customers than brands.

Fuxy 13y ago
If there weren't so may multimeters with the same color scheme out there I would agree with you but there are. Fluke is not the first one to use the color scheme they were just the first to apply for a patent on it. Even if they were they didn't enforce it until now so it became the general color scheme of all multimeters not just Fluke multimeters.
- chc 13y ago
  I really think you're overstating your case. https://www.google.com/search?q=multimeter&safe=on&client=firefox-a&hs=KWg&rls=org.mozilla:en-US:official&channel=fflb&source=lnms&tbm=isch&sa=X&ei=_NEpU9rKNsLxoASCw4GoBQ&ved=0CAoQ_AUoAg&biw=1240&bih=615#imgdii=_ https://www.google.com/search?q=multimeter&safe=on&client=fi... Most of the ones that look like a Fluke are indeed a Fluke.
  - Fuxy 13y ago
    Well on google images there's quite a few however if you look here [1] very few are actually a Fluke. [1] http://www.amazon.co.uk/s/ref=nb_sb_noss_2?url=search-alias%3Daps&field-keywords=multimeters http://www.amazon.co.uk/s/ref=nb_sb_noss_2?url=search-alias%...

hapless 13y ago

It's called "trade dress." You absolutely are allowed, and this is probably a good thing. In the case of a durable tool, like a multimeter, the industrial design serves the same purpose packaging does for normal consumer goods. Let me turn the question around: "Should you really be allowed to trademark your packaging?"

Spooky23 13y ago

I think that a better example is Coke -- their bottle shape is a user-friendly design that is easy to hold onto, but more importantly it has become an iconic symbol of Coke the brand. I think in the case of Apple, they iterate so often on basic laptop design that having trademarked trade dress around a laptop would be counter-productive. They always want their devices to be thinner and lighter, and that requires fundamental changes to the design (wedge shapes, unibody, etc) With the Dell laptop, what really makes it look like Apple? It's silver and thin. There are literally dozens of vendors shipping thin, silver devices.

deletesystem32 13y ago

> Good design adds and means nothing Yeah… nah