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 <mikebw@colossus.bilow.com> To: Chloe Hoffman <chloehoffman@hotmail.com> CC: debian-legal@lists.debian.org Subject: Re: Would this be applicable to the API issue? Date: Thu, 8 Jun 2000 03:39:06 -0400 (EDT)
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> >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.pdfCertainly, 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."
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