On Aug 16, 2008, at 12:49 PM, Jenny Wallace wrote:
this actually reminds me of something i brought up to my manager
yesterday.
i remarked that i wonder if it will ever be the case that companies
will
trademark things such as their taxonomy. for instance - i could steal
shopping.com's categorization and mimic it - would that be wrong or IP
infringement? does anybody think it will ever come to this?
The answer is No and Yes.
Trademark is unlikely for a taxonomy, because it protects the brand.
The only reason they'd choose to pursue a trademark case is if the
taxonomy because representative of the brand. For example, if it had
elements in it that were unique to that business (special brand
categories), then it might be a direct piece.
However, that might not even work, because one of the rules of
trademarks is that the pieces can't be functional in and of
themselves. So, since you click on categories, you can't really claim
them non-functional. So, I'm thinking that eliminates a claim of
trademark infringement.
Patents are another possible IP protection and the IP space I'm least
familiar with, but if you can claim your taxonomy is a new invention,
you can submit it for patent. These days, the patent office waits
forever, then approves many of the patents, letting the court system
decide if it truly a new invention or not. (They've been accepting
patent applications for Yoga positions, so anything is game.)
Defending a patent in court is horrendously expensive, so you have to
be really serious about protecting it that way.
Copyright infringement is probably the most likely. There's precedent
for this: Lotus won a case over Bourland for the Lotus 1-2-3 command
structure. (There was also an Apple v. Microsoft Look & Feel suit that
Apple lost, but that was mostly because the judge decided that Apple
was reneging on a previous licensing deal.)
Copyright protects the "expression of an idea" and so, it's possible,
someone could argue that their taxonomy was an expression and be
protected by copyright. There is a notion of fair use, but that's a
defense (again -- very expensive to prove), so settlement is more
likely. I could easily see something akin to the Dublin Core that is
privately developed, thereby protected through copyright.
If Shopping.com were to seek protection for their taxonomy, I think
copyright would be the most likely method. However, they'd have to
demonstrate that their particular expression of the taxonomy was
infringed. Being that their taxonomy is very similar to many others,
the defendants could argue that it's function and not art, and thereby
doesn't pass the conceptual separability requirement.
Of course, none of this stops a lawyer from sending a cease & desist
letter to someone for potentially violating an infringement. (See the
fuss that happened with O'Reilly sent C&Ds to folks holding their own
"Web 2.0" conferences.) In most cases, the assessment is they have
bigger wallets to spend on lawyers than we do, so we have to cease &
desist because we can't afford to fight. One viewpoint is that this
inhibits progress (because lawyers can bully around small creators/
inventors). Another is that it creates more creativity, since you have
to be ingenious about your approach to a problem and duplicative.
So, I do think it will happen that someone will copyright a taxonomy
and try to enforce it. In fact, I'd be surprised if it hasn't happened
already.
Jared
Jared M. Spool
User Interface Engineering
510 Turnpike St., Suite 102, North Andover, MA 01845
e: [EMAIL PROTECTED] p: +1 978 327 5561
http://uie.com Blog: http://uie.com/brainsparks
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