Forget Software Copyrights And Patents… How About Trade Dress?

from the protect-any-way-you-can... dept

There are already concerns over the fact that software can be covered by both copyright and patents, but why not add trade dress to the mix? Via Michael Scott we learn that Fidelity is suing a competing company because its software looks like Fidelity’s, and that the basic look and feel of Fidelity’s software is protected by trade dress. While you can understand Fidelity’s annoyance at having to compete with software that looks the same, the history of the software market is littered with “copycat” software products that drove markets forward. Apple, famously, copied the GUI from Xerox PARC. Microsoft copied the GUI from Apple (and there was a nice little lawsuit about all of that — though it focused on copyright and contractual issues, rather than trade dress). The spreadsheet was first created by Dan Bricklin and Bob Frankston — but Lotus eventually came out with a very similar product that (again) drove the market forward. Word Processors look quite similar to one another, and that’s (mostly) a good thing. CRM software. Email software. It goes on and on. Is it really so terrible if “loan syndication” software looks similar? Yes, sometimes someone strikes out in a new direction and tries something different (and sometimes that different innovation is quite useful), but that hardly means that only one company should get to stop others from using a particular layout.

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Comments on “Forget Software Copyrights And Patents… How About Trade Dress?”

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Marcus Carab (profile) says:

Re: Just innovate more.

Kipling is dear to my heart, and in fact he mentions my family in one of his pieces! (Leigh Beadon is my real name, by the way, and my family has a long history in England)

From “The Tomb of His Ancestors”:

“Some people will tell you that if there were but a single loaf of bread in all of India it would be divided equally between the Plowdens, the Trevors, the Beadons and the Rivett-Carnacs.”

Google Books link

Cody Jackson (profile) says:

Re: Re:

This is true. For most applications, consistency is a highly desirable trait. I’m sure most people have used a program that didn’t follow standard conventions and became extremely frustrated. Apple publishes a “standard” for designers so their applications appear like other Mac software (or reasonably so) to prevent users from being confused.

For many applications, there is essentially only one way of doing it. Consider spreadsheets; a table motif is about the only way they can be used effectively. At least, for 99% of projects.

I’m not denying that there may be better or different ways of doing the same thing, but you run into diminishing returns. Users have been trained for many years to accept a certain way of using computers. The biggest paradigm was moving form command line interfaces to GUIs. As mentioned in the article, the original GUIs were based off of PARC’s research. Realistically, they haven’t changed terribly much; they are still 2 dimensional, point and click interfaces.

Unless a program is doing something new or specialized, following the established format is more desirable. People know how to use spreadsheets, word processors, browsers, etc. Consider the backlash Microsoft had when it introduced the Ribbon interface w/ Office XP; though it may be better (that’s still a hot debate), people didn’t like it because it meant they had to relearn the program. One of the big gripes people have w/ switching to Macs is having to learn a whole new interface.

In general, copying software, especially if it’s in the same field as what you’re working on, is a good thing. Users are more comfortable with it and therefore more likely to give it a chance. That’s why OpenOffice looks so similar to MS Office; it’s easier for people to switch.

Anonymous Coward says:

Trade dress infringement suits under federal and state law are quite easy to file but notoriously difficult to win.

Winning, however, is not undheard of. Taco Cabana, Inc. v. Two Pesons, Inc. is but one of a few examples where trade dress infringement was held to be a viable cause of action under the federal Lanham Act (aka, our source of trademark law). Any doubt that trade dress can be a viable, actionable claim under our laws is reflected in the Supreme Court’s 9-0 decision in the Taco Cabana case.

Importantly, Taco Cabana was not a case where two restaurants selling Tex-Mex food coexisted in the same market. It was much more. It was about Taco Cabana “casing out” its competition, liking what it saw, and then adopting a design plan for its restaurants that was clearly viewed as a knock-off of the many unique features that Two Pesos successfully used to attract customers to its restaurants.

As I noted, however, it is easy to make such a claim, but them quite another matter to ultimately prevail.

Whether or not the software at issue meets the stringent tests articulated by the Supreme Court simply cannot be analyzed merely on the basis of an article that is not particularly informative concerning the salient facts.

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