Limits of “Initial Interest Confusion” Trademark Doctrine Delineated

The scope of the trademark doctrine of "initial interest confusion" was recently narrowed in Gibson Guitar Corp. v. Paul Reed Smith Guitars, LP, a case in which the 6th Circuit suggested that the theory may be limited to domain name disputes. The case involved Gibson Guitars, which brought suit against Paul Reed Smith Guitars after the Paul Reed began producing a line of guitars similar in shape to Gibson’s “Les Paul” series. Although Gibson conceded that no actual confusion at the point of sale was likely to occur, Gibson “argued the shape of Paul Reed guitar leads consumers standing on the far side of the room in a guitar store to believe they see Gibson guitars and walk over to examine what they soon realize are Paul Reed guitars.” Overturning the lower courts ruling, The 6^th Circuit declined to adopt a broad initial interest confusion doctrine that would “prevent competitors from producing even dissimilar products which might appear, from the far end of an aisle in a warehouse store, somewhat similar to the trademarked shape.”

Simon Riveles

Definition of Cultural Property According to Giannada

It has everything: international intrigue, a long-standing debt between a post-communist and western state, renowned works of art, the Swiss Alps, and a business man’s dogged pursuit of his $900 million, plus interest. Is it the latest James Bond’s GoldenEye? Not really, rather a Swiss business man’s golden billion.

Read Olivera Medenica’s article “Definition of Cultural Property According to Giannada” for an analysis of the recent Swiss Council’s decision to release paintings on loan from Pushkin State Museum of Fine Arts of Moscow

The Great Wiki Library--Now Accepting Registrations

Wikipedia is finally establishing some kind of point of entry quality control for new users content. It has always amazed me that Wikipedia functions as one of the largest, fastest growing and most consulted encyclopedic references in history, rapidly becoming the “Great Library” of our time. Despite the global array of anti-defamation laws, intellectual property laws, and anti-fraud laws, it took the complaining of one man, John Seigenthaler Sr., falsely implicated in a Wiki article of being suspected of participating in the Kennedy assignations, to get Wikipedia to institute a registration requirement. I happen to agree with him that a mere registration requirement will do much to stem influx of new content, but will do little in terms of substantive editorial control. But overall I still think Wiki's an open source resources in general demonstrate the sheer power of pooled internet processing.

Kaiser Wahab

Patent’s Ugly Sister Trademark is an Overlooked Weapon

In keeping with the previous post on Samsung as an illustration of the power of other legal doctrines in the tech world, besides patent, I found this excellent article on the power of trademark, using the iPod as a prime example. This article from Core77, a journal dedicated to industrial design, correctly frowns on the Cinderella that patent is in favor of its ugly sister, trademark. While the benefit of patent to a tech company is (I can’t resist) patently obvious, trademark and brand management can have an even more potent impact on a strategy towards marketplace domination. The article focuses on the third party licensing for the changing parts under the hood through the various iterations the iPod has undergone, and contrasts that with the nearly unchanged iPod interface design. The resulting analysis (with illustrations) is eye opening.


Kaiser Wahab

Samsung the Korean Dragon is Treated like a Trust Serpent

While the big story is the firestorm of patent rulings threatening to destroy the "crackbery" phenomenon, an equally dramatic storm has come to a quiet conclusion. Samsung, the Korean semiconductor dragon, was treated like a trust serpent, whose collusion and price fixing schemes allegedly cost domestic manufacturers over 300 million dollars. While patent law has been the hero and bane to the technology industry since time immemorial, trade regulation and antitrust has been largely ignored by the public discourse, despite its tremendous impact on competitive edge and fortunes. As with patent, antitrust, antidumping, and countervailing duties have the power to instantaneously reshape the playing field. And as is the case with Research in Motion, Samsung's fortunes have, at least for the time being, suffered a devastating blow.

The key lesson is that there a variety of legal weapons (not just patent) in the business realm that can cripple a high flying operation if it is not careful. Samsung admitted that it conspired with other companies to fix the price of Rambus DRAM (RDRAM) between Jan. 1, 2001 and June 15, 2002. And on October 13th, it plead guilty to a one-count felony conspiracy charge to fix the price of U.S. bound memory semiconductors. The company agreed to pay a 300 million dollar fine, which is the second largest criminal antitrust penalty in U.S. history. For a multinational like Samsung to admit to price fixing tactics demonstrates poor judgment of the highest order or willful blindness. This is not only a tremendous stain on their reputation, but will no doubt lend substantial leverage to their competition (Rambus in particular who has named Samsung a defendant in separate pending antitrust suits.)

While there are those that will argue that RIM played with fire in not more aggressively confronting its patent infringement dilemma, a similar argument can be made for Samsung in an entirely different legal context. The overriding theme is clear, be wary of lawsuits and plan accordingly. More importantly, there is not any one legal shark out there, but several--patent is not the only in the water. Ultimately, infringement, contract, antitrust, fraud, and other suits do end up with a resolution in a zero sum game, with a loser, and a winner.

Kaiser Wahab