"Again, confusion is not defined by whether a consume would actually be confused, but by the DuPont factors, of which actual consumer confusion is just one. A factor is not an element, and need not be fully satisfied to pass gravamen."
You conuse the cart and the horse. First
âoeSecondary meaningâ refers to evidence that, upon seeing a name, book series title or in this instance, a packaging, the public has come to believe that the product related to such name, series title or packaging comes from a particular manufacturer (publisher, popcorn maker etc.) and that a similar use by another would create a likelihood of confusion in the minds of the public as to source.
Second,
The Court then focused on the âoelikelihood of confusionâ element and identified a list of 8 factors that a court might use to make that determination. Such factors are not conclusive nor exhaustive but instead are factors that, among other factors, help focus the discussion.
It is not I confusing a factor with an element, but you who confuse a factor which can help determine the element, with the defining principle which *is* the element.
Citing another case, the Court quoted: The general concept underlying likelihood of confusion is that the public believe that the markâ(TM)s owner sponsored or otherwise approved of the use of the trademark.
So what is at issue here, is whether the public perceive use of the mark was in accordance with its rightful use as property, to denote the origin of a product. That is the concept which is "likelihood of confusion". There are 8 factors that help to determine if the public perception has been mislead, yes. But the point of the factors is to determine if confusion exists. You can't then say, "Well confusion exists, but that doesn't matter to determining if confusion exists." Sorry. Better luck next time.
A mark is distinctive. Design is not and can not be inherently distinctive. These are facts. Design can acquire distinction when, in the minds of men, it is associated with a source (as opposed to being assoicated with a product). This is not an inherent distinctive trait, but an acquired one. It isn't the design that *is* distinctive, but rather the status of the design in its relationship to the thoughts people have about seeing it in a product, to thoughts they have on who originated said product.
The court ruled:
The Court went on to discuss âoedistinctivenessâ of the mark. It stated in part:
In evaluating the distinctiveness of a mark under Â2 (and therefore, by analogy, under Â43(a)), courts have held that a mark can be distinctive in one of two ways.
First, a mark is inherently distinctive if âoe[its] intrinsic nature serves to identify a particular source.â Ibid. In the context of word marks, courts have applied the now-classic test originally formulated by Judge Friendly, in which word marks that are âoearbitraryâ (âoeCamelâ cigarettes), âoefancifulâ (âoeKodakâ film), or âoesuggestiveâ (âoeTideâ laundry detergent) are held to be inherently distinctive. [citing a case]
Second, a mark has acquired distinctiveness, even if it is not inherently distinctive, if it has developed secondary meaning, which occurs when, âoein the minds of the public, the primary significance of a [mark] is to identify the source of the product rather than the product itself.â [citing a case]
The Court stated further:
It seems to us that design, like color, is not inherently distinctive.
Your personal insults are beneath the quality of my discourse. I present facts. The bottom line is that the design, when created, can not be distinctive for purposes of the Lanham Act because design has no inherent distinction. Period. The best that can be hoped for is to acquire distinction by correlating the product's (by definition) inherently non-distinctive design with its origin in such a way that it acquires distinction (which it lacks inherently) by the association.
Another request, you are "fighting" rather than discussing. I can't get into a fight in things that over my head, because I don't stoop to that level. Please, elevate yourself to my level of discourse, and don't be afraid to learn something new.
There is nothing wrong with attaining and advertising commonality. Its only where they stop saying, "I look like civilizedINTENSITY!", and "I agree with civilizedINTENSITY!" and start saying, "I *am* civilizedINTENSITY!", that laws are broke. They ain't me.
To assume without authority and with fraudulent intent (some character or capacity) is a problem. To merely look alike or sound alike, thats not a problem. So long as no confusion exists as to identity: no harm, no foul.
Lets take this a step further to draw out our differences in opinion. Lets say a new web site is created that uses unheard of techniques in CSS to differentiate structure. Truely, remarkably, uniquely different presentation, and it *works*. Assuming its not under patent, and since it can't be under trade dress since its too new to have acquired secondary meaning, then everyone who designs a website should by writ of principles of ethics implied by, if not stated out right in their professional code of conduct, immediately copy those presentation techniques.
The reason they should do this is just this simple, it works, so it should be used. If its not protected and its better, then it should spread as far and fast as it can. This makes the world a better place. This sort of copying is not merely condoned, it is *required* of ethical citizens. Do regular updates! Don't get stuck in a less than agile mindset.
Only in so far as the color is percieved in the minds of people to be related to the source for the product (as opposed to identifying the product itself). In fact, in terms of secondary use, almost anything that can convey information and be without function, will work.
Please note: I said "layout", you are saying "look and feel". Please lets not talk around each other.
You can't have a website that doesn't have layout, of one sort or another. Thus, layout is inherent to what a website does, which is present structured information. "Look and feel" are different, although I'd suggest that heading levels, paragraph markers, etc..., are all layout, too. So the style sheets associated with them would also have use, as they are demarking structure. That is, they are part of the "structure" in "structured information". At what point does the functionality of layout become unnecessary enough to qualify for "look and feel"? I'd suggest that at the point where it no longer adds value to the presentation of material by being capable of being a "structure" identifier, and is thus just pretty and unnecessary (that is, not useful, without function) overhead.
My point is that you haven't established, to me at least, that Facebooks design has anything to do with trade dress, yet. I pointed out that design isn't distinctive in the product. It can only acquire secondary meaning. You can state over and over that it just is trade dress protected (and stamp your foot,even), but not without seeming silly if you keep referencing the design. You need to prove secondary meaning has developed, and you've never mentioned that once.
In terms of confusion, a term of art carries less weight than legal terminology. Of those eight points, the courts (in the US) have held that for copying to matter, there has to be evidence that confusion exists. I would suggest that confusion does not exist, it is well known by people who use the site that it is not facebook. Hence, no harm, no foul.
What seems to bother you, if I read between the lines correctly, is that it is legal to copy a new design (since it can't be inherently distinctive, and it takes time to acquire secondary meaning). I think you might be a designer, and wish to believe there is inherent distinction in design. Yes? One can always patent the design, though.
The Court cited McCarthy on Trademarks and Unfair Competition, a well respected legal treatise that says:
The first principle of unfair competition law is that everything that is not protected by an intellectual property right is free to copy. In fact, copying is an essential part of the whole fabric of an economic system of free competition. Thus, the act of "copying," far from being intrinsically improper, is essential and should be lauded and encouraged, not condemned. There is absolutely nothing legally or morally reprehensible about exact copying of things in the public domain.
You confuse something inherent to the design with trademark dress: "It uses a distinctive configuration of layout elements, text styles, and interactive elements."
Yet the US Supreme Court ruled that design, in and of itself, in the product, can not be inherently distinctive. The website can not "use" a distinctive configuration because such is not and can not be recognized in a court of law, because it doesn't exist. Any such mutterings are irrelevant.
However, one can acquire secondary meaning. While it is meaningless to say the design is distinctive, it is not impossible on its face that secondary meaning has developed, "which occurs when the public recognizes that the primary significance of the trade dress is identification of the product's source, not the product itself."
To summarize: regardless of how much you like the style, it can't (ever, by definition) have inherent distinctiveness. There is no such thing. Its only over time, as perception gathers in the minds of men, that a design can gain secondary meaning. Again, this is *not* inherent to the design. Design has no inherent distinctiveness.
The first principle of unfair competition law is that everything that is not protected by an intellectual property right is free to copy. In fact, copying is an essential part of the whole fabric of an economic system of free competition. Thus, the act of "copying," far from being intrinsically improper, is essential and should be lauded and encouraged, not condemned. There is absolutely nothing legally or morally reprehensible about exact copying of things in the public domain.
The Court stated further:
.
Other circuits that have likewise found that a presumption of intent to confuse arises when evidence of copying is presented recognize that if there is no real issue of a likelihood of confusion, evidence of copying is of no import. Id. (citations omitted). "We have recognized that evidence of intentional copying raises a presumption that a second comer intended to create a confusing similarity of appearance and succeeded. But if comparison of the works reveals no fair jury issue concerning likelihood of confusion, then intent to copy, even if found from the proffered evidence, would not establish a Lanham Act violation."
Cloud crystallization? You mean Snow 1.0? As in, "we sure snowed the customer re: the necessity of paying for that upgrade"? Sorry for the cloud burst, but marketers having been snowing (both customers and each other) since marketing began...
But in all those cases, the trade dress in nonfunctional. The decor is not a part of the functionality of transportation. The layout is a functional part of a website. One can't use color as part of a clothing trade dress, but one can use the color of insulation since the color isn't seen when the product is in use. Tell me in what way design elements can't be seen? The "C" pattern on Coach handbags is orthogonal to the use to which a handbag is put. The visual design of a website is *not* orthogonal to its use. Its bullshit.
I believe that the argument being made was that Facebook, like MS, is trying to cheat the system by stealing a win rather than earning it. That this would occur after an infusion of cash from MS is interesting, at least to me. MS gives SCO cash, SCO trys to sue their way into market dominance. MS gives Facebook cash, etc... If there is a pattern occurring don't you think it worthy of SEC attention?
If someone impersonates you, that means they are trying to make other people think that they are you. Thats a type of fraud. Someone who decides I'm cool, who starts wearing my type and color of clothes, uses my brand of laptop running by fav linux distro, cuts their hair to look like me, starts lifting weights, and eventually looks like me, but never trys to sign my name on a check isn't impersonating me. I should not have the right to tell other people they can't wear leather, for instance, because thats *my* style. Thats bullshit. Bullying bullshit.
It seems to me that website design fails to meet the requirements for trade dress protection, in that the visual elements of a website aren't without function. The purpose of denoting blocks with visual indicators is inherent to HTML, and is meant to be a guide. Claiming that color, font, stylesheets, etc...are part of trade dressing seems backasswards in terms of what trade dressing *is*:
Trade dress refers to characteristics of the visual appearance of a product or its packaging (or even the facade of a building such as a restaurant) that may be registered and protected from being used by competitors in the manner of a trademark.[vague] These characteristics can include the three-dimensional shape, graphic design, color, or even smell of a product and/or its packaging.
There are two basic requirements that must be met for trade dress protection. The first is that those features must be capable of functioning as a source indicatorâ"identifying a particular product and its maker to consumers. In the United States, package design and building facades can be considered inherently distinctiveâ"inherently capable of identifying a product. However, product design can never be inherently distinctive, and so such trade dress or other designs that cannot satisfy the 'inherent distinctivness' requirement may only become protectable by acquiring 'secondary meaning.' In other words, the mark may be protected if it acquires an association in the public mind with the producer of the goods.
Under the functionality doctrine, trade dress must also be nonfunctional in order to be legally protected; otherwise it is the subject matter of patent law. What is functional depends strongly on the particular product. To be nonfunctional, it cannot affect a product's cost, quality, or a manufacturer's ability to effectively compete in a nonreputational way. For example, color is functional in regard to clothing because that product is purchased substantially because of its color and appearance, but color is not functional on household insulation, which is purchased purely to be installed in a wall and is never seen.
So the real crux to this matter is that Facebook (like Walmart?) has done well in the USA and found that they don't "get" how other cultures work, and fail there. So they are suing. Does this mean that Facebook is attempting to make non-homogeneous culture illegal? "Diversity makes business more complicated."
"A months pay." Hmmm...since in 2006 the average income (in China) was $2,025. Will $168.75 (before taxes) pay for Win Vista and Office? If you aren't a student (and thus getting software w/o an update path?)
"You actually think they'll be thanking you or something?" Yes, the ones who learn do voice thanks in time. And they are way more appreciative than if you'd merely helped them limp along. Giving a fish vs. a fishing pole...
Most people won't care if their car uses gasoline or solar energy because most people won't be fixing their engines when they break. Heh. Lots of people *do* care. If its Free Software, then many painful headaches go away in terms of licenses paid for but whose activation is problematic. (Wolfram, Microsoft, and Paradigm, you three should be listening.) The straw man fallacy that one needs to be a programmer to care about Free Software is getting old.
Moving from Win95 to Win98 broke my CD-Recorder. The software that came with it couldn't run under win98, and never would. The solution was 6 months later to buy new software from HP. Oh well.
If GNOME moved to QT, there would still be two different GUIs. Its not as though GNOME would suddenly look like KDE. Rather, GNOME would look just like GNOME, but it's be easier and faster for developers to code changes, and GNOME could evolve as fast as KDE. Their would also be advantages, in terms of memory usage, to converging the libs.
That is in response to his saying "if Nokia makes the QT-licenses effectively compatible with the GNOME vision, can they embrace Qt as a platform?" So the question, in context, is really one of convergence of codebase.
In terms of how easy GNOME is to use, he means that corporations find the LGPL easier to use than the GPL. Again, this refers to a world where Nokia LGPLs Qt. One has to wonder what it would mean for GNOME to embrace Qt as a platform, if nothing in GNOME is to be written in Qt.
Slashdot Mirror
You conuse the cart and the horse. First
Second,
It is not I confusing a factor with an element, but you who confuse a factor which can help determine the element, with the defining principle which *is* the element.
The court ruled:
Your personal insults are beneath the quality of my discourse. I present facts. The bottom line is that the design, when created, can not be distinctive for purposes of the Lanham Act because design has no inherent distinction. Period. The best that can be hoped for is to acquire distinction by correlating the product's (by definition) inherently non-distinctive design with its origin in such a way that it acquires distinction (which it lacks inherently) by the association.
Another request, you are "fighting" rather than discussing. I can't get into a fight in things that over my head, because I don't stoop to that level. Please, elevate yourself to my level of discourse, and don't be afraid to learn something new.
There is nothing wrong with attaining and advertising commonality. Its only where they stop saying, "I look like civilizedINTENSITY!", and "I agree with civilizedINTENSITY!" and start saying, "I *am* civilizedINTENSITY!", that laws are broke. They ain't me.
To assume without authority and with fraudulent intent (some character or capacity) is a problem. To merely look alike or sound alike, thats not a problem. So long as no confusion exists as to identity: no harm, no foul.
Lets take this a step further to draw out our differences in opinion. Lets say a new web site is created that uses unheard of techniques in CSS to differentiate structure. Truely, remarkably, uniquely different presentation, and it *works*. Assuming its not under patent, and since it can't be under trade dress since its too new to have acquired secondary meaning, then everyone who designs a website should by writ of principles of ethics implied by, if not stated out right in their professional code of conduct, immediately copy those presentation techniques.
The reason they should do this is just this simple, it works, so it should be used. If its not protected and its better, then it should spread as far and fast as it can. This makes the world a better place. This sort of copying is not merely condoned, it is *required* of ethical citizens. Do regular updates! Don't get stuck in a less than agile mindset.
Only in so far as the color is percieved in the minds of people to be related to the source for the product (as opposed to identifying the product itself). In fact, in terms of secondary use, almost anything that can convey information and be without function, will work.
Please note: I said "layout", you are saying "look and feel". Please lets not talk around each other.
You can't have a website that doesn't have layout, of one sort or another. Thus, layout is inherent to what a website does, which is present structured information. "Look and feel" are different, although I'd suggest that heading levels, paragraph markers, etc..., are all layout, too. So the style sheets associated with them would also have use, as they are demarking structure. That is, they are part of the "structure" in "structured information". At what point does the functionality of layout become unnecessary enough to qualify for "look and feel"? I'd suggest that at the point where it no longer adds value to the presentation of material by being capable of being a "structure" identifier, and is thus just pretty and unnecessary (that is, not useful, without function) overhead.
My point is that you haven't established, to me at least, that Facebooks design has anything to do with trade dress, yet. I pointed out that design isn't distinctive in the product. It can only acquire secondary meaning. You can state over and over that it just is trade dress protected (and stamp your foot,even), but not without seeming silly if you keep referencing the design. You need to prove secondary meaning has developed, and you've never mentioned that once.
In terms of confusion, a term of art carries less weight than legal terminology. Of those eight points, the courts (in the US) have held that for copying to matter, there has to be evidence that confusion exists. I would suggest that confusion does not exist, it is well known by people who use the site that it is not facebook. Hence, no harm, no foul.
What seems to bother you, if I read between the lines correctly, is that it is legal to copy a new design (since it can't be inherently distinctive, and it takes time to acquire secondary meaning). I think you might be a designer, and wish to believe there is inherent distinction in design. Yes? One can always patent the design, though.
IANAL, but while NDA have weight, at least in CA, i believe that NCA have been ruled unenforcible as "restraint of trade".
You confuse something inherent to the design with trademark dress: "It uses a distinctive configuration of layout elements, text styles, and interactive elements."
Yet the US Supreme Court ruled that design, in and of itself, in the product, can not be inherently distinctive. The website can not "use" a distinctive configuration because such is not and can not be recognized in a court of law, because it doesn't exist. Any such mutterings are irrelevant.
However, one can acquire secondary meaning. While it is meaningless to say the design is distinctive, it is not impossible on its face that secondary meaning has developed, "which occurs when the public recognizes that the primary significance of the trade dress is identification of the product's source, not the product itself."
To summarize: regardless of how much you like the style, it can't (ever, by definition) have inherent distinctiveness. There is no such thing. Its only over time, as perception gathers in the minds of men, that a design can gain secondary meaning. Again, this is *not* inherent to the design. Design has no inherent distinctiveness.
Cloud crystallization? You mean Snow 1.0? As in, "we sure snowed the customer re: the necessity of paying for that upgrade"? Sorry for the cloud burst, but marketers having been snowing (both customers and each other) since marketing began...
But in all those cases, the trade dress in nonfunctional. The decor is not a part of the functionality of transportation. The layout is a functional part of a website. One can't use color as part of a clothing trade dress, but one can use the color of insulation since the color isn't seen when the product is in use. Tell me in what way design elements can't be seen? The "C" pattern on Coach handbags is orthogonal to the use to which a handbag is put. The visual design of a website is *not* orthogonal to its use. Its bullshit.
I believe that the argument being made was that Facebook, like MS, is trying to cheat the system by stealing a win rather than earning it. That this would occur after an infusion of cash from MS is interesting, at least to me. MS gives SCO cash, SCO trys to sue their way into market dominance. MS gives Facebook cash, etc... If there is a pattern occurring don't you think it worthy of SEC attention?
If someone impersonates you, that means they are trying to make other people think that they are you. Thats a type of fraud. Someone who decides I'm cool, who starts wearing my type and color of clothes, uses my brand of laptop running by fav linux distro, cuts their hair to look like me, starts lifting weights, and eventually looks like me, but never trys to sign my name on a check isn't impersonating me. I should not have the right to tell other people they can't wear leather, for instance, because thats *my* style. Thats bullshit. Bullying bullshit.
From widipedia
So the real crux to this matter is that Facebook (like Walmart?) has done well in the USA and found that they don't "get" how other cultures work, and fail there. So they are suing. Does this mean that Facebook is attempting to make non-homogeneous culture illegal? "Diversity makes business more complicated."
Agreed: else we'd have the case where the second or third spreadsheet ever made would start suing whoever came next.
If it is true that "look and feel" are now protected intellectual property, its time to change the law. Thats just *wrong*.
"A months pay." Hmmm...since in 2006 the average income (in China) was $2,025. Will $168.75 (before taxes) pay for Win Vista and Office? If you aren't a student (and thus getting software w/o an update path?)
Yes, but *my* service rate is higher for MS products, and I explain its because Windows is such a bitch to admin. And it is.
"You actually think they'll be thanking you or something?" Yes, the ones who learn do voice thanks in time. And they are way more appreciative than if you'd merely helped them limp along. Giving a fish vs. a fishing pole...
Most people won't care if their car uses gasoline or solar energy because most people won't be fixing their engines when they break. Heh. Lots of people *do* care. If its Free Software, then many painful headaches go away in terms of licenses paid for but whose activation is problematic. (Wolfram, Microsoft, and Paradigm, you three should be listening.) The straw man fallacy that one needs to be a programmer to care about Free Software is getting old.
Moving from Win95 to Win98 broke my CD-Recorder. The software that came with it couldn't run under win98, and never would. The solution was 6 months later to buy new software from HP. Oh well.
If GNOME moved to QT, there would still be two different GUIs. Its not as though GNOME would suddenly look like KDE. Rather, GNOME would look just like GNOME, but it's be easier and faster for developers to code changes, and GNOME could evolve as fast as KDE. Their would also be advantages, in terms of memory usage, to converging the libs.
That is in response to his saying "if Nokia makes the QT-licenses effectively compatible with the GNOME vision,
can they embrace Qt as a platform?" So the question, in context, is really one of convergence of codebase.
In terms of how easy GNOME is to use, he means that corporations find the LGPL easier to use than the GPL. Again, this refers to a world where Nokia LGPLs Qt. One has to wonder what it would mean for GNOME to embrace Qt as a platform, if nothing in GNOME is to be written in Qt.
Agreed, it wouldn't be enough to merely move Gnome to "G-Parts", while making sure G-Parts implements the K-Parts API. But that would be a start ;-)