Luxpro Sues Apple As Elaborate Lawsuit-Based Publicity Strategy Continues

from the this-ought-to-be-fun dept

Back in 2005, soon after Apple announced their original iPod Shuffle, Taiwanese electronics firm Luxpro announced a product called the Super Shuffle that had an uncanny resemblance to the Apple product. While there were some rumors that it was all just a publicity stunt, Apple's lawyers got to work and convinced a Taiwanese court to put an injunction in place banning the production of Luxpro's device. Luxpro appealed, and eventually won the lawsuit -- with the court actually claiming that "the appearances of the two products are significantly dissimilar." That's a bit surprising if you compare the two images, which make them out to be extremely similar-looking devices. Either way, Luxpro is taking the victory and turning it around to sue Apple for $100 million, claiming that they lost approximately that much in sales due to the injunction. Given the similarities between the devices, the way Luxpro positioned the whole thing, and the rumors that they hadn't really been producing the devices, it certainly sounds like this whole thing could have just been a publicity stunt, with the possibility that Luxpro could make out quite nicely in the end.


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  1.  
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    Anonymous Coward, Jan 5th, 2007 @ 9:37am

    I hope LuxPro succeeds. It will force corporations to rethink their "sue now, think later" attitudes.

     

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  2.  
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    ShadowSoldier, Jan 5th, 2007 @ 9:56am

    Wow

    What does everyone have against success. I mean the images look exactly the same, certainly enough to warrent trademark infringement, I mean If were a moron in a hurry I wouldn't know which was which, hell If I saw those two items in BestBuy I don't think I could tell the difference if they weren't in seperate boxes. The name Luxpro even sounds like a fake name, I mean who the hell would buy an MP3 player from a company that sounds like a Lex Luther infomortial.

     

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  3.  
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    Sounds like justice, Jan 5th, 2007 @ 10:43am

    Re: Wow

    I looks to me like for once there was a negative result for someone trying to sue someone off the market. I hope that they win so that perhaps playing the lawsuit card is only used sparingly due to a fear that someone is just setting them up.

     

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  4.  
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    misanthropic humanist, Jan 5th, 2007 @ 10:44am

    looks, price and functionality

    Thay look absolutely identical. There is no way anybody but an expert could really distinguish between these two products, but for one important feature - one is made by Apple and the other is made by Luxpro.

    So what's the problem?

    If Luxpro are able to produce the same device at a lower cost who on Earth should have any right to try and stop them?

    They are not pretending this is an Apple brand. Nobody is being deceived by trademark counterfeiting.

    This is good for the customer if it forces prices down. So as a customer I am happy to buy one.

    This happened in the microphone market 10 years ago. For almost 30 years a small number of companies like Neumann and AKG held a price fixing party on condenser microphones. A U67, one of the best microphones ever made cost about $3000. They maintained a carefully orchestrated campaign explaining how the gold foil process they used was very special and only a genuine Neumann was worth the money. Even the most technically savvy engineers accepted and repeated this marketing, no studio worth its salt would have anything but a genuine Neumann in the cradle.

    Then in about 1990 two companies, a Russian and a Chinese company started manufacturing condenser microphones which they claimed rivalled the performance of the best brands. They did - and some! Please take my word for it as an experienced user. Problem is, for Neumann, they produced them at 1/10 the price.

    Initially there was a campaign directed against the cheap microphones by engineers and producers who claimed the "fake" products were nowhere as good as the old stalwart brands (they were pissed off having spent money on the expensive ones). But in A-B tests nobody could tell the difference! Then they claimed that the construction was poorer. Another straw man, because at the price you could afford to buy 10 of the cheap ones for the cost of a spare part for the expensive brand.

    What does the market look like today? Fantastic. Neumann are still a highly desirable brand. It's a matter of pride to own a genuine Neumann and they still go for about $1500, they just had to find the right price point for their brand in a much more competitive market. The overall market is very healthy now, there are more brands of good condenser mics out there than ever before. My own, a Rode NT cost me about $80 and performs almost as well as a $3000 model from 15 years ago. It is modelled exactly on a classic design.

    This is called innovation and progress.

    If this can happen in a niche market like high end studio microphones it can damn well work in a commodity market like mp3 pods. By all the arguments of the protectionists Neumann should have been crucified, they were not.

     

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  5.  
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    PaleImitation, Jan 5th, 2007 @ 10:57am

    Typical Ripoff

    So what's the problem, m. humanist? If they sell them, they are profiting off the design efforts of Apple. I suppose if you were the CEO of Ford MoCo, you'd have no problem with folks driving around in their cheapie LuxPro Mustang GTs that look identical to your trademark design? How about at your job, you want someone looking over your shoulder, copying your work, and giving it to the boss as their own? Your microphone example is pointless unless the cheaper mics were made to look exactly like Neumann's, and I doubt $3000 mics were quite the fashion statement due to their looks alone.

     

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  6.  
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    Anonymous Coward, Jan 5th, 2007 @ 11:16am

    These Aren't JUST cheaper, they're also...

    These Aren't JUST cheaper, they're also an improvement!

    Well, I highly doubt the true quality of the audio out amps is actually better in the super-ripoff, there is an additional feature the in knock-off.

    It has a display on the back. (hence the name super)...

    I'm with apple on the Trademark violation, this product would cause consumer confusion (the only reason trademark exists).

     

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  7.  
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    misanthropic humanist, Jan 5th, 2007 @ 11:20am

    Re: Typical Ripoff

    "If they sell them, they are profiting off the design efforts of Apple."

    The mouse you are using is made by a company profiting off the design efforts of Xerox/PARC.

    That's the way technology works, it's good thing and we call it progress and improvement. Do you really find that so difficult to grasp?

    "I suppose if you were the CEO of Ford MoCo, you'd have no problem with folks driving around in their cheapie LuxPro Mustang GTs that look identical to your trademark design?"

    None at all. If I had any humility of sense of personal context at all I'd be thanking Christian Huygens, Francois Isaac de Rivaz, Samuel Brown, Eugen Langen, Sir Dougald Clerk, Edouard Delamare-Debouteville, Gottlieb Daimler, Wilhelm Maybach,Jean Joseph √Čtienne Lenoir, Alphonse Beau de Rochas, Siegfried Marcus,
    and George Brayton amongst others. And that's just for the engine.

    That would put my shitty little trademarked go-faster-stripes and spoilers into perspective wouldn't it?

    "Your microphone example is pointless unless the cheaper mics were made to look exactly like Neumann's"

    Some of them were yes.





    Nickolaus August Otto,


    Rudolf Diesel

    Nicolas Joseph Cugnot

    Gottlieb Daimler

    Karl Benz?

     

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  8.  
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    misanthropic humanist, Jan 5th, 2007 @ 11:32am

    contd..

    Oops, I munged the post there. Some inventors were a bit late for the party! :)

    So, there you go... The CEO of Ford is a nobody in terms of the motor car.

    We stand on the shoulders of giants. That's the easy part. The real test of a mans dignity, integrity, humility and social awareness is to realise that makes him a bigger giant and to have the spine to stand up straight when giants stand on his own shoulders.

     

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  9.  
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    sysadmn, Jan 5th, 2007 @ 12:04pm

    Yabbut

    misanthropic humanist -
    you left a name off the list -
    Henry Ford.
    A Michigan man who envisioned making automobiles for all Americans created one of the great American industrial success stories with assembly lines and workers' incentives.
    http://www.pbs.org/wgbh/theymadeamerica/whomade/ford_hi.html
    If the look and feel of the Apple device doesn't add value, why doesn't the imitator just change the design?

     

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  10.  
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    misanthropic humanist, Jan 5th, 2007 @ 12:15pm

    Oh Ford!

    Damnit, I did, and in my haste to rebuff the importance of Ford I forgot one of the great visionary capitalists of all time.

    "Ford shocked Detroit in 1914 by initiating the $5, eight-hour day. It was an instant doubling of pay, at least, and for less work. Thousands of aspirants showed up at Ford, ready to work under the newly generous terms. By the end of the Model T's run in 1927, fifteen million had been built and sold."

     

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  11.  
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    Adam, Jan 5th, 2007 @ 12:48pm

    Humanist, that's nonsense. This MP3 player is a ripoff. Your mouse example or car example or mike example don't hold, are you serious? Did they mikes look exactly like the competitors' mikes? If someone makes another car or another mouse it's OK as long as it looks different. So if these losers make another MP3 player that'd be cool, but they made one that looks exactly like Apple's.

    A.

     

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  12.  
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    sceptic, Jan 5th, 2007 @ 12:59pm

    Re: Oh Ford!

    First of all, humanist, you are confusing technological advances with trademarks here. What Luxpro doing here is using the clout that Apple created for itself through advertisement and design to push its own product. Innovation has got nothing to do with it. No one is fighting the "better/cheaper" alternative to iPod, they are fighting an MP3 player that looks similarly enough to Apple's product as to cause confusion.
    If we are to use your logic, then all the Gucci/CK/Rolex/etc knockoffs in China are legitimate just because they work.

    BTW, you might want to check your $5/day salary facts and actually see how long that lasted. It shouldn't be a surprise that anti-semitic Nazi sympathizer stopped this whole fair salary deal in no time.

     

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  13.  
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    Sanguine Dream, Jan 5th, 2007 @ 1:42pm

    I kinda agree with Apple here.

    The only reason I think Apple would have to sue is because of the striking resemblance. Hell the only reason I (think I) can tell them apart is becasue I'm reading the names in the caption from left to right. There is definitely a possibility for product confusion here.

    That falls under trademark right?

     

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  14.  
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    misanthropic humanist, Jan 5th, 2007 @ 2:07pm

    design

    Here's a few superficially similar large diaphram condensers.
    You will find dozens of manufacturers who use the same "classic" design, some are almost identical with each other. Behringer in particular have a very long tradition of producing exact clones.

    The price and quality of them varies greatly.


    http://www.idjnow.com/ProductImagesSmall/NT1A.jpg
    http://www.creativeidentitygroup.com/wp-con tent/uploads/neumann-mic.gif
    http://www.bluearan.co.uk/sales/behringer/images/B1.jpg


    "If we are to use your logic, then all the Gucci/CK/Rolex/etc knockoffs in China are legitimate just because they work."

    Incorrect. Those products deliberately misrepresent other branded products by labelling them as Gucci/CK/Rolex etc. There is an obvious intention to deceive.

    The microphones above and (presumably - because I can't see from the photo) the pod in TFA are branded with their respective logos.

    If I am correct about the labelling, who is stupid enough to be "confused" by the difference between Luxpro and Apple? They don't even contain the same number of letters or share anything in common except for one "p".

    If they labelled it as Addle (in an identical font and colour) with the familiar picture of an Apple then perhaps I could agree that they are deliberately trying to confuse. However, this kind of design copying has been common in the manufacturing industry for centuries. Students of design understand this.

    Can you tell the difference between a Randoneur, an Umberto and a Raleigh racing bycycle? No.

    What about the manufacturers of teacups?

    The form of an object does not constitute a trademark.


    Please shut up about Nazis Sceptic, or I will have to invoke Godwins. Ford was disliked and by many accounts an asshole. That does not detract from his prowess as revolutionary industrialist.

     

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  15.  
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    misanthropic humanist, Jan 5th, 2007 @ 2:17pm

    Re: I kinda agree with Apple here.

    "That falls under trademark right?"

    That's the issue Sanguine. A trademark is exactly what is says, a mark or logo used to trade upon. The trademark in fact comes about because many objects in the real world have a common optimal design and it is desirable for manufacturers of those items to differentiate between themselves.

    What about pencils?
    What about footballs?
    What about toothbrushes?
    Or teacups and plates?

    I could go on, but please for the love of kittens, is this really not insultingly obvious?

    Do you think Staedtler and Berol have lawsuits with one another because their pencils both have pointy ends and long thin bits?

    Al the same, I agree, as I said in my first post, this is practically a clone. Without branding nobody could easily tell the difference. That does not mean they have infringed any trademark.

     

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  16.  
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    sceptic, Jan 5th, 2007 @ 2:30pm

    Re: design

    humanist,

    The form of an object does not constitute a trademark.

    Next thing you are gonna say that color does not constitute a trademark either. You seem to have a problem with grasping the concept of trademark and the reason Luxpro was sued was because it was trying to piggyback on the image created by Apple when it copied the design. And if you go to Best Buy on any given day, plenty of people confuse dissimilar MP3 players to begin with and buy Zen/Sandisk/etc thinking its an iPod. It's even easier to confuse with a product that looks similar to iPod.

    I am glad that you at least dropped the ridiculous claim of "innovation."

    And when bringing up examples of Ford's prowess, choose ones that lasted, there are plenty of those.

     

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  17.  
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    misanthropic humanist, Jan 5th, 2007 @ 3:17pm

    Re: Re: design

    "Next thing you are gonna say that color does not constitute a trademark either."

    Nice troll, but you are taking the piss now aren't you?

    "And if you go to Best Buy on any given day, plenty of people confuse dissimilar MP3 players to begin with and buy Zen/Sandisk/etc thinking its an iPod."

    That's because they are congenital idiots.

    "I am glad that you at least dropped the ridiculous claim of "innovation.""

    I haven't. Since finding that the device actually has another display (conveniently not shown in the example given) I am certain more than ever that this product represents an incremental design improvement on the original device it mimics.


    "And when bringing up examples of Ford's prowess, choose ones that lasted, there are plenty of those."

    Oh! Like Ford the great Arctic explorer you mean? Or Ford who will always be rememberd for his skill at apple pie juggling? Yeah, all that stuff with the motorcar was just a bit of a passing hobby, I'm surprised people make such a big thing about it.

    /bangs head repeatedly on table

     

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  18.  
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    LJSeinfeld, Jan 5th, 2007 @ 4:06pm

    Re: Re: design by misanthropic humanist

    While I think that arguing just for the sake of arguing can be fun, and everybody likes to play "Devil's Advocate" from time to time, there is no way you can convince me that, if you have, at least, a central nervous system -- and eyes, you can't see that that product is a blatant rip-off of an Apple design.

    Virtually everybody (in the market) _wants_ an iPod. Luxpro can see this, as they have eyes. They produced a product that, from not much of a distance, would be mistaken 99% of the time for a real iPod, and if you profess to disagree - I'd call you a liar.

    Also, as I'm sure you know, in order to maintain control of a trademark or patent, one is expected to vigorously defend it. Not defending it would be allowing consumer brand confusion.

    If I bought a set of Taylor Made golf clubs, made molds of them, and roto-cast a complete knock-off set --but added an additional item to the underside where you would mostl likely not see it in product packaging would I not be guilty of ripping off someones image (at the least) and/or engineering?

     

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  19.  
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    Anonymous Coward, Jan 5th, 2007 @ 4:18pm

    Re: Re: Re: design

    /bangs head repeatedly on table

    It shows

     

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  20.  
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    misanthropic humanist, Jan 5th, 2007 @ 6:43pm

    Re: Re: Re: design by misanthropic humanist

    Yes LJ, I've said right from the outset that this is a clone and that without a very prominent trademark displayed only an expert could make the call. I believe you can see my first response.

    However, I have used this to explore a very important point in modern manufacturing vis form, function and how that relates to trademarks. I am not disagreeing that Luxpro intended to capitalise on the desirability of that form. But to dismiss it as a "ripoff" and not distinguish it from goods which are real counterfiets - with fake branding logos and so forth is premature without proper analysis.

    Appearance is only one aspect. Could you tell an Umbro football from an Adidas without the logo? The quality of stitching, leather and vulcanisation are all effectively hidden, non-visual attributes.
    As I said, that is the very purpose of trademarks. But people are confusing the design form with the trademark.

    What constitutes "confusion" if a product is clearly labelled? Who sets that standard? I guess it may be for a judge to find. If I were the judge I might want to consider other factors, such as the packaging that the product is sold in. And I do think it's disingenuous that TFA does not venture that if you turn the product around one sports a large display while the other does not.


    "If I bought a set of Taylor Made golf clubs, made molds of them, and roto-cast a complete knock-off set --but added an additional item to the underside where you would mostl likely not see it in product packaging would I not be guilty of ripping off someones image (at the least) and/or engineering?"

    That's a very interesting question. I have tried to give some good examples of products that have a generic optimal design, and to point out why although they may look very similar there is a world of difference between them. The quality of your clubs would most likely depend on the casting process and the quality of your materials sourcing. They could be extremely shoddy or of a very high standard. I see no reason for you not to clone the appearance so long as you don't attempt to sell those clubs as "Taylor" brand.

    So you would be copying the appearance, but not the engineering. You do not know Taylors manufacturing process, perhaps they are hand lathed, or extruded. Each manufacturing process would give a unique twist to the quality and performace, performance that a golfer (I am not a golfer so I guess) would recognise and expect. That is why it would not be acceptable for you to pass them off as genuine Taylors.

    It's an interesting debate, and I'm sticking firmly to my guns over a number of fundamental principles here. Thanks for raising the discussion back from "Nazis" again.

    Yes, I love a good argument. Between me and you... its a ripoff :) But I hope I've made some valid points.

     

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  21.  
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    LJSeinfeld, Jan 5th, 2007 @ 7:31pm

    Form / Function / yada

    I've got a Rev 1 iMac 233 Mhz G3 that functions great as a 10 gig mp3 player. But you wouldn't want to carry it around... the function is essentially the same as any other mp3 player... but the form would be less than desirable.

    Like another poster said -- if Luxpro's product was so great, why would they need to copy (pretty much exactly) the form of the iPod? I'm guessing because they wish to trade on the iPod's good name (as it were) and popularity.

    One thing Apple is *really* good at is producing clever designs that pay attention to fit and finish, form factor, interface usability, etc. They invest a lot of cash in hiring prominent industrial designers to come up with these things, and expect to be able to benefit from the fruits of their labor. I'm sure the components in both devices are a relatively small fraction of the costs of the production run as compared to the R&D, market testing, etc.

    I would consider things like footballs, basketballs, the wheel, etc... to be things that are in the public domain. I'm sure there may be subtle differences between 2 quality basketballs... but I don't think (and I guess I could be wrong) that there's all that much R&D left to do.

    Marketing and endorsements are pretty-much all that separates the various brands.

    --but let's say you spent 2 million on developing a basketball that had, by design of the pattern on the outside, a better interface -- let's say it flew 30% truer, or had a more intuitive feel that made players feel more confident and made them more accurate. The ball is made of the same material, but the dimple design is different. And then, lets' say that I came along, acquired one, took it to China, copied it exactly --but changed just enough insignificant details to just squeak by international copyright law-- and started selling them. My cost of development was 1 of your products, and a plane ticket. I can sell my "improved" basketball for a TON less than you can because I don't have that 2 million dollar investment to pay off.

    My nearly-slave-labor costs in China may yield less quality -- but my price point is sooo much less than yours, it's difficult for you to persuade your customers to buy your quality product. I have effectively eaten your lunch.

    Copying others ideas: 1, Innovation: 0

    Forgot to mention earlier... if my memory serves me correctly, Apple legally acquired the concepts of the GUI, the Mouse, and etc from the Xerox PARC team of "California Hippies" (not my terminology) that couldn't sell the concept to their close-minded "East Coast" board of directors

    ... unlike the "real" player in the OS market who saw something cool and decided to copy (or embrace and extend) it. --but I digress.

     

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  22.  
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    misanthropic humanist, Jan 5th, 2007 @ 8:23pm

    I was wrong!

    After reflection, I have to agree with those who disagreed with me in the above posts. It is somewhat dishonest for a company to put out a product with an identical appearance -- even more dishonest than using an identical brand name. The designer who innovates and works hard to make a better product needs to be rewarded with some protection from those lazy-asses who would just copy his work. I'm sorry for being such an asshole -- well, I am a misanthrope.

     

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  23.  
    identicon
    misanthropic humanist, Jan 5th, 2007 @ 10:01pm

    design

    Hey LJ,

    I think for your first point one would have to include portability in the functional requirements or else we could extend that argument ad absurdum, a Saturn V rocket and a skateboard both being transport devices. :)

    "I would consider things like footballs, basketballs, the wheel, etc... to be things that are in the public domain."

    I wonder, if the standards of modern intellectual property law were applied to those devices over the centuries, would the manufacturers of basketballs and wheels still be paying a licencing fee to the estate of "inventors" who dies 1000 years ago? Would that be moral or useful to mankind in "promoting the arts and sciences"?


    "One thing Apple is *really* good at is producing clever designs that pay attention to fit and finish, form factor, interface usability.."

    No disputing that, they are masters of it. Certainly Apple put a lot of fine research into the GUI, it is perhaps seminal in its layout, yet I think if you look at the design of interfaces for other audio devices you will see common themes leading to this arrangement. Back to the shoulders of giants argument again. People seem to have very short memories when it comes to seeing how any piece of technology fits into an historical context.


    Also, though not that pertainant, Apple are no saints when it comes to copying designs it must be said. The fact remains that the Luxpro does seem to be a point for point replica. And yet they did win the case, from which you must draw your own conclusions.

    My nearly-slave-labor costs in China may yield less quality -- but my price point is sooo much less than yours, it's difficult for you to persuade your customers to buy your quality product. I have effectively eaten your lunch.

    That would indeed seem to be logical, which is why I gave the example of Neumann in a previous post. Most industry analysts expected Neumann to be destroyed by the influx of Chinese and Russian products, and yet not only were they not, they continue to retail their products for a significant premium. Perhaps this indicates a real brand loyalty, or maybe the power of reputation.

    Brands are actually very robust. Consider Sony and how muddied their face should be after their disgraceful behaviour, bad luck, poor judgement and the contempt they've shown to their customers in the last 12 months. One would expect their reputation to be in tatters, and yet..

    http://games.slashdot.org/games/07/01/05/1629215.shtml

    I think strength and confidence are most evident when one is not ruffled by pale immitators and one takes emulation as flattery. Central to this is the belief that your best work is always ahead of you and the past is a foreign land. That's why I think these unnecessary and wasteful lawsuits are brought about only by lawyers chasing a quick buck rather than out of any real need to protect what has already been acheived.

    Which brings me to....

    Very nice try #22, a point most poetically made in an intelligent, witty, well written, succinct, even magnanimous post. But the connoisseur is not fooled. I mean, just feel the quality of the Real Thing (tm). ;)

     

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  24.  
    identicon
    Charles Griswold, Jan 5th, 2007 @ 11:14pm

    Trademark vs. Trade Dress

    The problem here is that everyone seems to be assuming that the similarity between the iPod Shuffle and the Super Shuffle is a trademark issue. It's not. It's a trade dress issue.

     

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  25.  
    identicon
    |333173|3|_||3, Jan 7th, 2007 @ 6:10pm

    BTW, Colour has been trademarked by Cadbury (just look at the back of a pack of Dairy Milk and you will see that in the list of things which cadbury has trademarks on is "the colour purple", abd I believe that thier Bournville packs are similarly marked with regard to the red they use). Thius was done because someone did copy the Cadbury purple, and so they had to ensure it was recognised as a trademark. Still you can use purple on chocolate, provided it is clear that it is not Cadbury's.

    Apple's/Xerox's GI design is used by everyone because noone cna think of a better one (I.e one which does not work on the principles of using windows, a mouse, and icons. I am not referring to the skin(s), but rather to the concept.) I would imagine this is not least because al the potential GUI designers spend so much of thier time looking at the current generation of GUIS. I would also say that the desire to make it easy for Windows users to switch to your OS is secondary

     

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