That's plainly false. It is neither North America-specific nor is it college student-specific. It is indeed used in Europe--in fact, Airbus issues facebooks to its project teams. In German, it does exist, as Studentenverzeichnis--otherwise the site's name would not make sense. The two refer to the exact same publication. In the United States, Facebook.com is named after the Harvard Facebook, the official, physical publication it was meant to compete with and replace. It is synonymous with directory, and one of several terms used idiomatically throughout the world, as opposed to a yearbook, which is fairly North America-specific.
I am not a college student in the United States. It is not slang. It is at best colloquial, but considering its use in business, even that is stretching things. Its most popular use now is the multi-billion dollar social networking site, but the name was specifically challenged because it was a generic term, in a fairly high-profile legal challenge to Facebook.
Yet the US Supreme Court ruled that design, in and of itself, in the product, can not be inherently distinctive.
Yet another confused rambling. The Supreme Court did not say that design cannot be distinctive. It held that an individual product design is not sufficiently distinctive on its own without secondary meaning. Design must be distinctive first and foremost in order to qualify for achieving secondary meaning. "A trade dress has acquired distinctiveness if it has developed secondary meaning, 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", from your very own link. Samara held that an individual product design is not itself distinctive trade dress. But you're not paying attention to the examples: the tailfins of Cadillacs, the color magenta in cellular services, the shape of a Coke bottle. It's not the design that they're protecting, it's the association with the origin.
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."
"An unregistered mark can be 'distinctive,' for purposes of a Lanham Act provision protecting unregistered marks if their use is likely to cause confusion, if its intrinsic nature serves to identify a particular source, so that it is inherently distinctive, or if it has acquired a secondary meaning, so that, in the minds of the public, the primary significance of the mark is to identify the source of the product rather than the product itself." Lanham Trade-Mark Act, 43(a), 15 U.S.C.A. 1125(a).
Exactly as has occurred here. It is not meaningless to say the design is distinctive. It is necessary. When a trade dress, as Facebook's, has acquired secondary meaning, it is distinctive and protectable.
Please get a clue and don't pick fights in things over your head.
If someone impersonates you, that means they are trying to make other people think that they are you. Thats a type of fraud.
Or they're trying to benefit from an association with you or achieve a better position in the marketplace because of that implied commonality. Signing a check is a myopic standard to use for impersonation--they can derive benefit from the impersonation in many other ways, and when it's in a business context, the rules are narrower, just like it is for people. A celebrity's likeness is protected by a right to publicity.
I don't understand what's so difficult for you to wrap your head around, or why you and other posters keep insisting on reducing comparisons down to single elements, missing the forest for the trees. No one is alleging that you shouldn't use the same font or wear leather. That's the bullshit, and it's coming from your ignorance.
...exactly. A facebook is a publication used by universities, large law firms, political organizations, and some businesses. It's an established word and not a unique product, nor is it a slang term for some other publication. It's considered by some to be colloquial, but not slang.
You're a slashdotter all right, but a misguided and confused one, just like the masses.
Thanks for playing, but you're absolutely dead wrong.
There's so much wrong with your post that it's impossible to know where to begin. For starters: ripoff != theft. Ripoff: n, copy or imitation. Also steal != theft. Tangible, material goods are not requisite to stealing.
Further, you're completely off base because this is a trademark case, not copyright. Go back to your regularly scheduled ignorance.
Somehow you missed the critical elements of what you quoted.
Everything not covered is free to copy. Facebook's trade dress is protected.
Likelihood of confusion is also established by the eight DuPont factors, which are satisfied here. "Likelihood of confusion" is not a plain meaning phrase, it's a term of art.
That's indicative of their idiocy and evidence of their literal copying. They can ripoff the files with wget, but they still had to put together some form of backend--that would be their failure. If they had any skill whatsoever, they'd have a more original layout.
It's just a bad copy by talentless hacks. It doesn't have anything to do with whether or not they lifted the frontend web code.
It's the database that would be targetted by the crawler, not the web pages.
I have never heard the word "Gesichtsbuch" (indeed a neologism in German) and it would certainly not be translated into "Studentenverzeichnis" (not a neologism).
Exactly my point.
A facebook is not a yearbook. It is a student directory--literally, a 'Studentenverzeichnis'. Neither 'Gesichtsbuch' nor 'Jahrbuch' would be appropriate translations of 'facebook'.
Oh, and don't forget that it's difficult to claim rights to generic terms.
No one is making any such claim. Perhaps you are not familiar with the concept of trade dress, nor the steps involved in defending it.
It is not any one element of duplication that is dispositive; it is the replication of an entire ambiance. A translation of the name, coupled with the lifting of code, the extensive similarity in layout (even outright duplication of CSS in previous versions of the site) all combine to constitute more than sufficient grounds for a trademark claim.
Also note that their "poke" function is named...poke.php. Most of their functions and libraries, in fact, are written in English...and named identically to their Facebook counterparts. The rest of the code, however, is in German (i.e. what they added or bothered to rename).
Yes, you can create the word, but it does not have the meaning that 'facebook' has in English. It would be a neologism.
The German word for 'facebook' (NOT 'Facebook') is Studendenverzeichnis. Studendenverzeichnis does not mean yearbook, which is a different, but similar, type of publication.
Your post does not make sense. The literal translation of "facebook" would indeed be Gesichtsbuch, but that word has no meaning in German. The German lexical equivalent is 'Studendenverzeichnis'. Facebook is not a neologism, nor is Studendenverzeichnis.
At the expense of feeding the incompetent troll...
So according to you, if I wanted to make another social networking site aimed at college students I'd have to call it something random, otherwise I'd be a plagiarist?
Yes, you'd have to come up with something other than a translation of "facebook" (which is neither narrow nor slang, regardless of whether or not you've encountered the term before), if in addition to copying the name, you lifted entire sections of code, layout, features, and functionality.
It's not any one thing. It's not the name alone. It's not the layout alone. It's not the font family alone. It's the combination of those and the others. There was no need to duplicate so carefully--it was either intentional wagon-hitching or malicious sloth. Neither is acceptable. Plenty of other social networking sites manage to get started without being complete ripoffs.
Focusing on the font is missing the forest for the trees. It's like saying that the guy impersonating you down to the the details used the same shampoo, and thousands of other people use that shampoo. It's absurd. It's not just the shampoo. The font is one element--the font size, formatting, and coloring are others. Take that small set of similarities and add it to the other small sets of similarities. Taken together, there is no chance of coincidence.
Both sites have changed slightly since this issue was first disclosed, but the underlying harm, and the German knockoff's exploitation of Facebook's marks for profit, continues unabated. The "developers" made millions on this scam.
It's not unique to software by a long shot. It's called "trade dress" and it's used by disparate industries. Some examples: airline cabin interiors, restaurant decor, automobile body elements (e.g. Cadillac tail fins, Lincoln's "spare tire" hump and eggcrate grille, Mercedes-Benz double headlights), and quite famously, the shape of a Coke bottle.
In the fashion industry, trade dress covers things quite different from the number of buttons. The allegation clearly indicates you don't have an appropriate frame of reference. One example for you: the "C" pattern on Coach handbags and whatnot, not the location or number of zippers.
Code? So you've seen the source for both these sites?
Server side, no. But take a look at the source presented in the browser.
Functionality? It's like any other social networking site
They're not all the same. The functionality of MySpace is considerably different from that of LinkedIn, and likewise from Orkut, and likewise from Facebook. Further, TFA makes reference to the Facebook-specific "poke" feature.
Layout? They both have a login screen on the left.
They also have the same arrangement of top and bottom links, boxed in. The curved top bar is from an earlier layout of Facebook's homepage, and the text area and dimensions of the interface elements are the same. How do you know whether or not Facebook has filed a look and feel trademark? It seems they have, based on their legal policies online.
Features? Essentially the same as functionality.
Features are not the same as functionality. Features are the on-screen graphical elements (i.e. the content inside a layout), functionality is the underlying mechanics. Again, Facebook is distinctive in its home page, profile, and other elements, as compared to other social networking sites.
Not sure how Students Directory = Facebook.
Now it's clear to me. You are some combination of an idiot or a troll.
A facebook is exactly a student directory. It is a publication of contact information, interests, activities, and the like distributed to students or members of an organization.
Defending style elements are critical to maintaining trademark protection, when that trademark is dependent on look and feel. Facebook is not so innovative as to be worth copying for any legitimate technical aim, nor is it so generic that it was an accident.
It uses a distinctive configuration of layout elements, text styles, and interactive elements. Even details such as the use of square brackets and grey shading around text boxes for emphasis are duplicated exactly. Just browsing the two home pages and looking at the two registration forms, the resemblance is obvious. It's so painstakingly reproduced in terms of spacing, CSS element sizing and positioning, and text formatting that it's obvious it's a copy-and-paste job, not even a handcrafted reproduction.
They're not designing their site so that it's similar--they're downright copying it. It's absurd and pointless, and Facebook has every right to defend their distinctive marks in the consumer space. If some other website flat-out reproduced Slashdot's appearance, changing the green to orange, would a person with basic familiarity with Slashdot look at the new site and consider that the two might originate from the same people? That's substantial confusion when you're not directly selling a product.
You continue to ignore my point. The after-the-fact contract (i.e. EULA) is not a stipulation of sale.
No, you just continue to fail to comprehend. The EULA is a stipulation of use, not of sale. You are free to buy the box and do as you please with it, but the purchase of the media does not confer a license.
Forcing someone to accept it's terms
It is terms...what? There is no force. Accept or reject. You have a choice.
You can't call a consumer irresponsible for companies assuming s/he agrees to an unmentioned and indeterminite contract, sight-unseen, at the time of sale. No other industry would even attempt such a thing.
There is no assumption. They are presented with terms, and they agree or disagree.
Contrary to your statements, this is quite common in a number of industries: airline travel, cruise tickets, parking facilities, cellular service contracts, cable TV, high-speed Internet access, and credit cards, just to name a few off the top of my head.
why should i have to fight to return software (or hire an atty) because the mfg has a set or rules that conflict with their resellers rules?
You shouldn't. But you also shouldn't have to fight with your cell phone company when they screw up your bill, nor should you have to fight to exercise a termination clause. Enforcing a contract often requires more than simply pointing to the provision. That is simple human nature, and why there are tens of thousands of cases on the books.
Or one better, when companies update their EULA or TOS that *should* give me the right to reject the change and cease using the software.
You have every right to do so.
I'd like to return my copy of warcraft because they updated their EULA last week. You think anyone is going to even listen for more than 3 seconds?
No, because it's a ridiculous assertion. You used the software. When they change the terms of the online service, you are free to discontinue the online service, but you're not entitled to a refund for the software license itself because you received the benefit of that bargain. Further, unless I'm mistaken, you can continue to use the offline portions of the software without consequence.
Where do you get that he has an iPhone? Nowhere in the entry does he mention anything to do with Apple or the iPhone, despite what everyone seems to be gravitating toward. Many of those people are the same ones who complain, "there are other phones out there!"--but now seem to see phantom iPhones everywhere.
Like any US cell phone contract plan, you're looking at a total cost in fees and taxes of 10-15% on top of the features you select. It's not rocket science to ballpark it, but no one can individually get a result within a one dollar confidence interval without specific information on rates, plan selections, and geographic location.
It can't be that hard to build and maintain a database of current plans, the current fees and current taxes.
That's exactly what the story author is complaining about. I agree that if their billing systems can do it, their CSR system can figure out a way to provide that information (+/- $1 or so).
Slashdot Mirror
That's plainly false. It is neither North America-specific nor is it college student-specific. It is indeed used in Europe--in fact, Airbus issues facebooks to its project teams. In German, it does exist, as Studentenverzeichnis--otherwise the site's name would not make sense. The two refer to the exact same publication. In the United States, Facebook.com is named after the Harvard Facebook, the official, physical publication it was meant to compete with and replace. It is synonymous with directory, and one of several terms used idiomatically throughout the world, as opposed to a yearbook, which is fairly North America-specific.
I am not a college student in the United States. It is not slang. It is at best colloquial, but considering its use in business, even that is stretching things. Its most popular use now is the multi-billion dollar social networking site, but the name was specifically challenged because it was a generic term, in a fairly high-profile legal challenge to Facebook.
Wow. You certainly win the award for fulfilling the ignorant Slashdotter stereotype down to a T.
All property is imaginary, no quotes needed. Copying music without authorization is not legal either. You can't dismiss this action with prejudice.
Yet the US Supreme Court ruled that design, in and of itself, in the product, can not be inherently distinctive.
Yet another confused rambling. The Supreme Court did not say that design cannot be distinctive. It held that an individual product design is not sufficiently distinctive on its own without secondary meaning. Design must be distinctive first and foremost in order to qualify for achieving secondary meaning. "A trade dress has acquired distinctiveness if it has developed secondary meaning, 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", from your very own link.
Samara held that an individual product design is not itself distinctive trade dress. But you're not paying attention to the examples: the tailfins of Cadillacs, the color magenta in cellular services, the shape of a Coke bottle. It's not the design that they're protecting, it's the association with the origin.
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."
"An unregistered mark can be 'distinctive,' for purposes of a Lanham Act provision protecting unregistered marks if their use is likely to cause confusion, if its intrinsic nature serves to identify a particular source, so that it is inherently distinctive, or if it has acquired a secondary meaning, so that, in the minds of the public, the primary significance of the mark is to identify the source of the product rather than the product itself." Lanham Trade-Mark Act, 43(a), 15 U.S.C.A. 1125(a).
Exactly as has occurred here. It is not meaningless to say the design is distinctive. It is necessary. When a trade dress, as Facebook's, has acquired secondary meaning, it is distinctive and protectable.
Please get a clue and don't pick fights in things over your head.
If someone impersonates you, that means they are trying to make other people think that they are you. Thats a type of fraud.
Or they're trying to benefit from an association with you or achieve a better position in the marketplace because of that implied commonality. Signing a check is a myopic standard to use for impersonation--they can derive benefit from the impersonation in many other ways, and when it's in a business context, the rules are narrower, just like it is for people. A celebrity's likeness is protected by a right to publicity.
I don't understand what's so difficult for you to wrap your head around, or why you and other posters keep insisting on reducing comparisons down to single elements, missing the forest for the trees. No one is alleging that you shouldn't use the same font or wear leather. That's the bullshit, and it's coming from your ignorance.
The look and feel of a website is not functional, it is aesthetic. One can use color as part of clothing trade dress.
You're still confused.
...exactly. A facebook is a publication used by universities, large law firms, political organizations, and some businesses. It's an established word and not a unique product, nor is it a slang term for some other publication. It's considered by some to be colloquial, but not slang.
You're a slashdotter all right, but a misguided and confused one, just like the masses.
Thanks for playing, but you're absolutely dead wrong.
There's so much wrong with your post that it's impossible to know where to begin. For starters: ripoff != theft. Ripoff: n, copy or imitation. Also steal != theft. Tangible, material goods are not requisite to stealing.
Further, you're completely off base because this is a trademark case, not copyright. Go back to your regularly scheduled ignorance.
Somehow you missed the critical elements of what you quoted.
Everything not covered is free to copy. Facebook's trade dress is protected.
Likelihood of confusion is also established by the eight DuPont factors, which are satisfied here. "Likelihood of confusion" is not a plain meaning phrase, it's a term of art.
That's indicative of their idiocy and evidence of their literal copying. They can ripoff the files with wget, but they still had to put together some form of backend--that would be their failure. If they had any skill whatsoever, they'd have a more original layout.
It's just a bad copy by talentless hacks. It doesn't have anything to do with whether or not they lifted the frontend web code.
It's the database that would be targetted by the crawler, not the web pages.
I have never heard the word "Gesichtsbuch" (indeed a neologism in German) and it would certainly not be translated into "Studentenverzeichnis" (not a neologism).
Exactly my point.
A facebook is not a yearbook. It is a student directory--literally, a 'Studentenverzeichnis'. Neither 'Gesichtsbuch' nor 'Jahrbuch' would be appropriate translations of 'facebook'.
Oh, and don't forget that it's difficult to claim rights to generic terms.
No one is making any such claim. Perhaps you are not familiar with the concept of trade dress, nor the steps involved in defending it.
It is not any one element of duplication that is dispositive; it is the replication of an entire ambiance. A translation of the name, coupled with the lifting of code, the extensive similarity in layout (even outright duplication of CSS in previous versions of the site) all combine to constitute more than sufficient grounds for a trademark claim.
Nothing you said says anything about reusing code. Adding datamining is a copy and paste operation, which they've plainly already mastered:
http://flickr.com/photos/bumi/285541845/sizes/o/
Also note that their "poke" function is named...poke.php. Most of their functions and libraries, in fact, are written in English...and named identically to their Facebook counterparts. The rest of the code, however, is in German (i.e. what they added or bothered to rename).
Yes, you can create the word, but it does not have the meaning that 'facebook' has in English. It would be a neologism.
The German word for 'facebook' (NOT 'Facebook') is Studendenverzeichnis. Studendenverzeichnis does not mean yearbook, which is a different, but similar, type of publication.
Your post does not make sense. The literal translation of "facebook" would indeed be Gesichtsbuch, but that word has no meaning in German. The German lexical equivalent is 'Studendenverzeichnis'. Facebook is not a neologism, nor is Studendenverzeichnis.
At the expense of feeding the incompetent troll...
So according to you, if I wanted to make another social networking site aimed at college students I'd have to call it something random, otherwise I'd be a plagiarist?
Yes, you'd have to come up with something other than a translation of "facebook" (which is neither narrow nor slang, regardless of whether or not you've encountered the term before), if in addition to copying the name, you lifted entire sections of code, layout, features, and functionality.
It's not any one thing. It's not the name alone. It's not the layout alone. It's not the font family alone. It's the combination of those and the others. There was no need to duplicate so carefully--it was either intentional wagon-hitching or malicious sloth. Neither is acceptable. Plenty of other social networking sites manage to get started without being complete ripoffs.
Focusing on the font is missing the forest for the trees. It's like saying that the guy impersonating you down to the the details used the same shampoo, and thousands of other people use that shampoo. It's absurd. It's not just the shampoo. The font is one element--the font size, formatting, and coloring are others. Take that small set of similarities and add it to the other small sets of similarities. Taken together, there is no chance of coincidence.
Both sites have changed slightly since this issue was first disclosed, but the underlying harm, and the German knockoff's exploitation of Facebook's marks for profit, continues unabated. The "developers" made millions on this scam.
It's not unique to software by a long shot. It's called "trade dress" and it's used by disparate industries. Some examples: airline cabin interiors, restaurant decor, automobile body elements (e.g. Cadillac tail fins, Lincoln's "spare tire" hump and eggcrate grille, Mercedes-Benz double headlights), and quite famously, the shape of a Coke bottle.
In the fashion industry, trade dress covers things quite different from the number of buttons. The allegation clearly indicates you don't have an appropriate frame of reference. One example for you: the "C" pattern on Coach handbags and whatnot, not the location or number of zippers.
Code? So you've seen the source for both these sites?
Server side, no. But take a look at the source presented in the browser.
Functionality? It's like any other social networking site
They're not all the same. The functionality of MySpace is considerably different from that of LinkedIn, and likewise from Orkut, and likewise from Facebook. Further, TFA makes reference to the Facebook-specific "poke" feature.
Layout? They both have a login screen on the left.
They also have the same arrangement of top and bottom links, boxed in. The curved top bar is from an earlier layout of Facebook's homepage, and the text area and dimensions of the interface elements are the same. How do you know whether or not Facebook has filed a look and feel trademark? It seems they have, based on their legal policies online.
Features? Essentially the same as functionality.
Features are not the same as functionality. Features are the on-screen graphical elements (i.e. the content inside a layout), functionality is the underlying mechanics. Again, Facebook is distinctive in its home page, profile, and other elements, as compared to other social networking sites.
Not sure how Students Directory = Facebook.
Now it's clear to me. You are some combination of an idiot or a troll.
A facebook is exactly a student directory. It is a publication of contact information, interests, activities, and the like distributed to students or members of an organization.
Defending style elements are critical to maintaining trademark protection, when that trademark is dependent on look and feel. Facebook is not so innovative as to be worth copying for any legitimate technical aim, nor is it so generic that it was an accident.
It uses a distinctive configuration of layout elements, text styles, and interactive elements. Even details such as the use of square brackets and grey shading around text boxes for emphasis are duplicated exactly. Just browsing the two home pages and looking at the two registration forms, the resemblance is obvious. It's so painstakingly reproduced in terms of spacing, CSS element sizing and positioning, and text formatting that it's obvious it's a copy-and-paste job, not even a handcrafted reproduction.
They're not designing their site so that it's similar--they're downright copying it. It's absurd and pointless, and Facebook has every right to defend their distinctive marks in the consumer space. If some other website flat-out reproduced Slashdot's appearance, changing the green to orange, would a person with basic familiarity with Slashdot look at the new site and consider that the two might originate from the same people? That's substantial confusion when you're not directly selling a product.
Live Search and Google don't look anything alike.
Not sure how it's different?
It's a re-use of code, functionality, layout, and features...and it's a conscious ripoff of the name.
It's not a joke taking a crack at a competitor. Orkut didn't rip off Myspace more or less verbatim.
You're dealing in beliefs, I'm talking about facts.
You are quite mistaken.
The fact is that property is nothing more or less than a set of rights. It is entirely imaginary, intangible, and otherwise artificial.
You continue to ignore my point. The after-the-fact contract (i.e. EULA) is not a stipulation of sale.
No, you just continue to fail to comprehend. The EULA is a stipulation of use, not of sale. You are free to buy the box and do as you please with it, but the purchase of the media does not confer a license.
Forcing someone to accept it's terms
It is terms...what? There is no force. Accept or reject. You have a choice.
You can't call a consumer irresponsible for companies assuming s/he agrees to an unmentioned and indeterminite contract, sight-unseen, at the time of sale. No other industry would even attempt such a thing.
There is no assumption. They are presented with terms, and they agree or disagree.
Contrary to your statements, this is quite common in a number of industries: airline travel, cruise tickets, parking facilities, cellular service contracts, cable TV, high-speed Internet access, and credit cards, just to name a few off the top of my head.
why should i have to fight to return software (or hire an atty) because the mfg has a set or rules that conflict with their resellers rules?
You shouldn't. But you also shouldn't have to fight with your cell phone company when they screw up your bill, nor should you have to fight to exercise a termination clause. Enforcing a contract often requires more than simply pointing to the provision. That is simple human nature, and why there are tens of thousands of cases on the books.
Or one better, when companies update their EULA or TOS that *should* give me the right to reject the change and cease using the software.
You have every right to do so.
I'd like to return my copy of warcraft because they updated their EULA last week. You think anyone is going to even listen for more than 3 seconds?
No, because it's a ridiculous assertion. You used the software. When they change the terms of the online service, you are free to discontinue the online service, but you're not entitled to a refund for the software license itself because you received the benefit of that bargain. Further, unless I'm mistaken, you can continue to use the offline portions of the software without consequence.
All property is "imaginary", mister angrypants.
Where do you get that he has an iPhone? Nowhere in the entry does he mention anything to do with Apple or the iPhone, despite what everyone seems to be gravitating toward. Many of those people are the same ones who complain, "there are other phones out there!"--but now seem to see phantom iPhones everywhere.
Like any US cell phone contract plan, you're looking at a total cost in fees and taxes of 10-15% on top of the features you select. It's not rocket science to ballpark it, but no one can individually get a result within a one dollar confidence interval without specific information on rates, plan selections, and geographic location.
It can't be that hard to build and maintain a database of current plans, the current fees and current taxes.
That's exactly what the story author is complaining about. I agree that if their billing systems can do it, their CSR system can figure out a way to provide that information (+/- $1 or so).
TFA is applicable equally to all cell phones, carriers, and service plans. It's got nothing to do specifically with the iPhone.