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Re: Would this be applicable to the API issue?

In general, "trade dress" is a fairly weak concept.  Owens-Corning has
been held, for example, to have a protectable right to make fiberglass
insulation in a distinctive pink color because there is no natural
association with that color and construction material.  On the other hand,
John Deere has been held not to have a protectable trademark interest in
their distinctive green color because there is an obvious and natural
association between the color green and farm equipment.

I think the Apple/eMachines case is something of an aberration in being
taken seriously.  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.  Taken to its logical extreme,
Apple could use this argument to prohibit anyone else from making a
computer that was not perfectly rectangular and beige.  To make matters
worse for Apple (as you note in the part of your quote I snipped), the
eOne is a Windows machine and therefore very unlikely to be confused by
the public with the iMac, so Apple is reduced to arguing a dilution claim.

More critically with regard to the Debian issue, "trade dress" must be
applied to the actual goods or services themselves.  That is, although
Ferrari may claim a protectable interest in the distinctive shape of their
cars, the cars are the product.  An analogous claim on a web site might be
argued in theory for a product which is a web site, such as Yahoo, but the
Debian web site is not itself a product.  The "swirl" graphic, of course,
is a classic trademark, intended to be affixed to the product itself.

The notion of applying a "trade dress" theory to "sales techniques" seems
very far-fetched, at least as I understand those terms.  I suppose this is
theoretically possible, but any case I can think up where this might work
would have stronger claims otherwise.  For example, taking the iMac as an
inspiration, suppose that a used car salesman happens to be named "Barber"
and decides to buy uniforms for all of his salespeople which are red and
white striped, like a barber pole.  He features people dressed in these
odd outfits extensively in his print and television advertising.  His
competitor decides that this is working well, and decides to buy all of
his salespeople uniforms that are blue and yellow striped.  Barber cannot
make much of a "trade dress" claim: he is not painting the cars, and he is
not making the cars to begin with; car salespeople are notorious for
wearing outlandlish attenion-getting clothing; and it is hard to see why
blue and yellow stripes would suggest "Barber" in the same way as red and
white.  Unless Barber has some independent claim (if he, say, uses the
slogan "The Home of the Striped Salespeople") then he has a tough case.

-- Mike

On 2000-06-05 at 00:11 -0400, Andrew Weiss wrote:

> It seems as if this would bundle the Debian Swirl and the look of Debian's
> website and cover any issues rather than dealing with it as copyright
> infringement and/or trademark infringement.
> Excerpt from an article dealing with Apple sueing Emachines for the eOne: on
> MacWeek News
> Trade dress 
> Trade dress is protectable as an unregistered trademark and is a subset of
> trademark law and principles; it is designed to ensure that a product or
> service's shape, appearance, color, packaging or even sales techniques are
> not copied by a competing product.

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