> I don't intend to detract from your example here, or from
> your explanation
> of your understanding of the judge's ruling. You make good
> points. However,
> I've never heard of a NetFrame server, and so if I saw one of
> the uniquely
> designed boxes I wouldn't say "Aha, a NetFrame server!". I
> might say "Cool
> design", but the brand identity still wouldn't be obvious,
> and it certainly
> wouldn't be obvious to most other consumers, either. In my
> mind, therefore,
> this wouldn't qualify under the judge's "trade dress" definition.
True, but what you, or I, or any arbitrary person would recognize
isn't the criteria. If a design is such that it "is likely to cause
confusion . . . as to the origin, sponsorship, or approval of his or
her goods" then it is protected. I.e., if you wanted a NetFrame
computer, knew what one looked like, found one, bought it, and then
discovered a bunch of "IBM" stickers on the components, that would
produce "confusion...as to the origin" of the box. Someone who has no
idea what a NetFrame is isn't likely to be confused, because they have
no brand-association. A headhunter from the Amazon seeing an empty
Coke bottle floating down the river would probably not immediately
identify it as something produced by the Coca Cola company, but the
ruling identifies that design as one that can be protected.
>
> If you're looking for an example of a computer that *does*
> qualify, then
> look no further than Apple's iMac. This machine probably
> comes closer to
> the Coke bottle than any other computer ever has in terms of its
brand
> recognition in the average consumer's eyes. In fact, Apple
> recently won its
> own "trade dress" law suits against some wintel copy cats.
Hard to say. The iMac looks a whole lot like LSI and TeleVideo
terminals from the late 70s; on the other hand, when it appeared it
was pretty much unique in the market, and anyone who had ever seen one
would immediately identify a case with that shape, color, and material
as being an Apple product.
Steve Dirickson WestWin Consulting
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