Forget Software Copyrights And Patents... How About Trade Dress?
from the protect-any-way-you-can... dept
There are already concerns over the fact that software can be covered by both copyright and patents, but why not add trade dress to the mix? Via Michael Scott we learn that Fidelity is suing a competing company because its software looks like Fidelity's, and that the basic look and feel of Fidelity's software is protected by trade dress. While you can understand Fidelity's annoyance at having to compete with software that looks the same, the history of the software market is littered with "copycat" software products that drove markets forward. Apple, famously, copied the GUI from Xerox PARC. Microsoft copied the GUI from Apple (and there was a nice little lawsuit about all of that -- though it focused on copyright and contractual issues, rather than trade dress). The spreadsheet was first created by Dan Bricklin and Bob Frankston -- but Lotus eventually came out with a very similar product that (again) drove the market forward. Word Processors look quite similar to one another, and that's (mostly) a good thing. CRM software. Email software. It goes on and on. Is it really so terrible if "loan syndication" software looks similar? Yes, sometimes someone strikes out in a new direction and tries something different (and sometimes that different innovation is quite useful), but that hardly means that only one company should get to stop others from using a particular layout.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, patents, software, trade dress
Companies: fidelity
Reader Comments
Subscribe: RSS
View by: Time | Thread
Whoa
That said, this is the classic case of suing someone for 'dressing like me.'
[ link to this | view in thread ]
Just innovate more.
“They copied all they could copy,
But they couldn’t copy my mind
So I left them sweating and swearing
Half a year behind!”
[ link to this | view in thread ]
Trade Pants
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Just innovate more.
Half a year behind!”
Goddamn, I'm becoming a Kipling fanboi.
[ link to this | view in thread ]
Re: Re: Just innovate more.
Kipling's got some seriously good stuff.
[ link to this | view in thread ]
Speaking of trademarking interfaces...
http://www.techcrunch.com/2009/09/01/developers-be-warned-apple-has-apparently-trademarked -those-shiny-chat-bubbles/
[ link to this | view in thread ]
If I make my windows app look like a Mac app ....
[ link to this | view in thread ]
Re: Re: Re: Just innovate more.
No, I'm sad to admit. Although I heartily approve the sentiment.
It's not a frequently quoted bit of Kipling, judging from google.
[ link to this | view in thread ]
Re: Just innovate more.
From "The Tomb of His Ancestors":
"Some people will tell you that if there were but a single loaf of bread in all of India it would be divided equally between the Plowdens, the Trevors, the Beadons and the Rivett-Carnacs."
Google Books link
[ link to this | view in thread ]
Re: Re: Just innovate more.
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Winning, however, is not undheard of. Taco Cabana, Inc. v. Two Pesons, Inc. is but one of a few examples where trade dress infringement was held to be a viable cause of action under the federal Lanham Act (aka, our source of trademark law). Any doubt that trade dress can be a viable, actionable claim under our laws is reflected in the Supreme Court's 9-0 decision in the Taco Cabana case.
Importantly, Taco Cabana was not a case where two restaurants selling Tex-Mex food coexisted in the same market. It was much more. It was about Taco Cabana "casing out" its competition, liking what it saw, and then adopting a design plan for its restaurants that was clearly viewed as a knock-off of the many unique features that Two Pesos successfully used to attract customers to its restaurants.
As I noted, however, it is easy to make such a claim, but them quite another matter to ultimately prevail.
Whether or not the software at issue meets the stringent tests articulated by the Supreme Court simply cannot be analyzed merely on the basis of an article that is not particularly informative concerning the salient facts.
[ link to this | view in thread ]
Perhaps if we dressed a product in a suit and tie it might sell better?
[ link to this | view in thread ]
Re: Trade Pants
[ link to this | view in thread ]
I was thinking of dress codes :)
Here I thought one company was freaked out because another company asks their employees to dress the same way. :)
Now that would definitely be rather frivolous. :D
[ link to this | view in thread ]
burger dress
[ link to this | view in thread ]
Re: If I make my windows app look like a Mac app ....
[ link to this | view in thread ]
[ link to this | view in thread ]
Re:
For many applications, there is essentially only one way of doing it. Consider spreadsheets; a table motif is about the only way they can be used effectively. At least, for 99% of projects.
I'm not denying that there may be better or different ways of doing the same thing, but you run into diminishing returns. Users have been trained for many years to accept a certain way of using computers. The biggest paradigm was moving form command line interfaces to GUIs. As mentioned in the article, the original GUIs were based off of PARC's research. Realistically, they haven't changed terribly much; they are still 2 dimensional, point and click interfaces.
Unless a program is doing something new or specialized, following the established format is more desirable. People know how to use spreadsheets, word processors, browsers, etc. Consider the backlash Microsoft had when it introduced the Ribbon interface w/ Office XP; though it may be better (that's still a hot debate), people didn't like it because it meant they had to relearn the program. One of the big gripes people have w/ switching to Macs is having to learn a whole new interface.
In general, copying software, especially if it's in the same field as what you're working on, is a good thing. Users are more comfortable with it and therefore more likely to give it a chance. That's why OpenOffice looks so similar to MS Office; it's easier for people to switch.
[ link to this | view in thread ]