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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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Post-sale confusion? Yes. Damage? To the contrary! | 201 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Post-sale confusion? Yes. Damage? To the contrary!
Authored by: Anonymous on Tuesday, August 14 2012 @ 03:50 PM EDT
"... then having a very visibly distinctive, non-functional-
impacting differentiator would have been advisable."

Wouldn't you think that a big SAMSUNG logo across the front
is considered "a very visibly distinctive, non-functional-
impacting differentiator"?



"If a non-label is a distinctive "feature", is the absence
of a label a protected design element, if the first design,
market leader, and heaviest advertiser prominently shows
their product's lack of label?"

I think this question hits the nail on the head. Basically,
can you protect a design that lacks ANY ornamentation when
the definition of definiton of trade dress and design
patents refer to ornamentation all over it. Is the lack of
ornamentation an ornamentation by itself. And isn't that too
generic for protection?

[ Reply to This | Parent | # ]

Post-sale confusion? Yes. Damage? To the contrary!
Authored by: BJ on Tuesday, August 14 2012 @ 03:56 PM EDT
If it's potentially a lost sale, as you say (which can be contested), it should
be at first presumed to be as a result of true, unproblematic (in its ultimate
sense a theoretic construct, I admit) competition.

Anything beyond that brings us to conjecture, and in front of a judge.

Question: are 'watered-down sales' because of competiton equal to 'lost sales'?

bjd



[ Reply to This | Parent | # ]

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