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| Authored by: Anonymous on Tuesday, January 15 2013 @ 12:35 PM EST |
Very well. Before I do, I will make one further comment,
while hoping it doesn't get taken the wrong way. Another
commenter in this thread mentions that the number of
attorneys that participate can be counted on less than one
hand. There may be a reason for that! In my limited
experience, the individuals who make up such a lively
community here are not interested in the *standards* of the
law when it reaches conclusions that they disagree with, and
respond in a most colorful way. Often remarking that
attorneys have no value to add to the discussions here.
Building on that, one might say that these minute legal
distinctions in IP law could make a difference. For example,
there's a lot of people that post "common sense" ideas about
what patents cover and what they don't. Perhaps that's true
in a normative sense (what we think patents should cover)-
but not in a descriptive sense. Are colors patentable?
Yes! See Qualitex Co. v. Jacobson Products, Inc., 514 U.S.
159 (1995) (note- all cases I cite may be reviewed in google
scholar for free). Resolving a circuit split, the Supreme
Court wrote, "The courts and the Patent and Trademark Office
have authorized for use as a mark a particular shape (of a
Coca-Cola bottle), a particular sound (of NBC's three
chimes), and even a particular scent (of plumeria blossoms
on sewing thread). . . . If a shape, a sound, and a
fragrance can act as symbols why, one might ask, can a color
not do the same?" (internal citations omitted)
So can a color alone be protected IP (in this case a
trademark)... yeah, it can. If a color can be protected,
does it suddenly seem so odd that a design patent for
"rounded rectangles" fails as a matter of law? What does
that tell us (other than, to some people, the law can be an
ass...)- that common sense doesn't always answer the legal
question.
Okay, more specifically.
For a court going through the different standards applicable
to trade dress v. design patents, see Grand Gen. Accessories
Mfg. v. United Pacific Indus., Inc., 732 F.Supp.2d 1014
(C.D. Cal 2010). This gives you a good overview of the
different standards.
For why the "but the design patent was issued for a
functional design" argument doesn't work, try:
Maker's Mark Distillery, Inc. v. Diageo North America, Inc.,
703 F. Supp. 2d 671 (W.D. Ken. 2010) (going through a
functionality analysis in trademark).
Again, this should be why these patent cases are
frustrating- precisely because the descriptive (what the law
is) may be at odds with the normative (what you want the law
to be).
Anyway, I hope you feel better soon! You do excellent work
posting source documents; really, there is no reason PACER
should be charging for this. I just sometimes think that you
confuse your roles as an advocate v. educator- the two are
not the same.
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