Just some follow-up for those who may be interested....
Sorry but....This is not legal advice, no attorney-client relationship is
established hereby, etc. etc.
From: Mike Bilow <[EMAIL PROTECTED]>
To: Chloe Hoffman <[EMAIL PROTECTED]>
CC: [email protected]
Subject: Re: Would this be applicable to the API issue?
Date: Thu, 8 Jun 2000 03:39:06 -0400 (EDT)
<snip>
> >I think the Apple/eMachines case is something of an aberration in being
> >taken seriously.
>
> I am not so sure. I think iMacs have a pretty distinctive shape (trade
> dress) and when I see them I know they are Apple's. Perhaps it can be
argued
> that the iMac design is "functional" - an aspect of the test not
mentioned
> in the article - that is whether the particular feature(s) of the
product
> are essential to the user or purpose of the article.
>
> > To me, the iMac looks like a case made in the natural
> >shape of the CRT and given a funny color, which is hardly in itself
> >sufficient to justify a protectable claim.
>
> But that's not the legal standard. The analysis is whether the shape is
> functional (perhaps an issue of dispute), is distinctive (iMacs don't
look
> like your run of the mill beige box) and it identifies the source of the
> goods to which the trade dress is applied (I think a good survey would
show
> most people identify the iMac shape with Apple).
My argument on the iMac rests primarily on the claim of distinctiveness.
I think there is very strong argument to be made that the iMac shape is
not _inherently_ distinctive: it is not appreciably different than a
Lear-Siegler ADM3 terminal or an ADDS Regent terminal, for example, and
the shape is simply that of the CRT inside the monitor box. One might
argue that, since the vast majority of the public has neither seen nor
heard of these ancient terminals and has no idea of the natural shape of a
CRT, then Apple has through advertising bestowed a secondary meaning onto
their shape which is not otherwise inherently distinctive.
Getting into the details of distinctiveness, I believe the U.S. Supreme
Court recently opined that product design trade dress requires a showing of
secondary meaning (as you allude to). See the very recent (March, 2000)
Walmart v. Samara decision here:
http://www.supremecourtus.gov/opinions/99pdf/99-150.pdf
Certainly, secondary meaning is a higher threshold than inherent
distinctiveness but I wouldn't be surprised that Apple could meet it.
Notwithstanding what the law requires, I would think Apple would be able to
show inherent distinctiveness. I think the iMac is unique in its use of a
rounded all-in-one design with translucent neon-colored materials along with
a round disc on the back that includes a handle. Can't say I have ever seen
an old terminal look anything like that. I don't know the terminals you
mentioned. Do they have those features?
FYI, here is a quote from a Ladas & Parry (an IP firm) newsletter:
"The application of this provision to product configuration was considered
by the Tokyo District Court in considering an application for a preliminary
injunction in Apple Computer Inc. v. Sotec Corporation. The product in
question was Apple's iMac computer which went on sale in Japan in August
1998. The defendant's product was announced in July 1999. The judge found
that both it and the defendant's computer had blue and white
semi-transparent plastic coatings and rounded all in-one designs. The judge
also found that the iMac design had striking originality, the product had
been a commercial success and that advertisement of the product had put
emphasis on its design. Under such circumstances the configuration of the
product could be a protectable indication of goods under the Unfair
Competition Law. A preliminary injunction was granted."
<snip>
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