About a week ago another interesting federal intellectual property case was filed in the District of Minnesota: Fantasy Flight Publishing, Inc. v. Puffin Software et al.

Although the four count complaint includes a federal unfair competition claim, a Minnesota deceptive trade practices claim, and a common law unjust enrichment claim, the case really appears to be centered around the copyright

Sixteen pairs of experienced computer users are asked to beta test your on-line product and each of them just stare at the screen until they are asked "what’s wrong?"

They reply almost in unison, "we’re waiting for the rest of it."

Would you have been discouraged by their almost unanimous response?

Kind of like the emperor, after being told by a child that he’s wearing no clothes?

In response, would you have been inclined to clutter up the user interface to provide "the rest of it"?

Or, would you recognize the power of simplicity and brevity?

With this kind of a slow start, would you ever expect to earn the label "the most successful company in the world"?

Thank goodness Marissa Mayer, employee #24, kept the lines clean, easy, and the screen bare.

If you’re tired of waiting for "the rest of the story," click to see the answer below the jump.Continue Reading “We’re waiting for the rest of it . . . .”

   

We’ve spent some time here discussing the world-famous Coca-Cola brand. Most recently, David Mitchell wrote about the incredible consistency of the Coca-Cola brand over the past 125 years. A while back Dave Taylor wrote a nice Ode to the Brand of Brands, the King of Cola: Coke.

And, let’s not forget my humble suggestion that a roadside sign promoting Coca-Cola at a drive-in restaurant that actually sells Pepsi instead of Coke, might be a good example of an appropriate application of the initial interest confusion test.

But, what about Coca-Cola’s frequent reference to "taste infringement" — some cleverly novel and suggestive legalese apparently coined by the Coca-Cola brand a few years back with its launch of Coke Zero?

Putting aside Brent’s fair question of whether the ads are a good idea, some of my favorite ads have been the Coke Zero viral ads, where a variety of lawyers are punk’d on hidden cameras, led to believe they are being interviewed by Coca-Cola representatives to take legal action for "taste infringement" — against the Coca-Cola team down the hall, the rival team of co-workers behind the Coke Zero launch. This one is my favorite, with lines such as these:

"Are you aware that Coke Zero tastes a lot like Coca-Cola?"

"There might be some taste infringement issues."

"I think it’s basic taste infringement, I’d like to stick with that phrase."

"Basically, a patent/copyright, a little too closely."

The ads are silly and I suspect most viewers appreciate the ridiculousness of Coca-Cola suing itself, but I’m not so sure people understand "taste infringement" to be a ridiculous or faux-legal claim — especially in this environment of increased focus and attention on the expansiveness of intellectual property rights. So, perhaps you heard it here first, there is no such legal claim.

In The Great Chocolate War, as reported by Jason Voiovich, the legal claim that Hershey’s — owner of the coveted Reese’s brand — brought against Dove’s competing peanut butter and chocolate candy, was based on trade dress. Notably, there was no asserted claim of "taste infringement". No one owns the combined taste of peanut butter and chocolate, thank goodness.

That’s not to say, however, that there aren’t intellectual property rights impacting the human sense of taste. For example, with respect to trademarks, we’ve written before about the possibility of taste being the subject of a non-traditional trademark, but to the best of my knowledge, none has been acknowledged or even identified to date. If you have information to the contrary, please share your insights here.

Of course, there is a reason for the lack of or scarcity of taste trademarks. Any product intended for human consumption is unlikely a candidate for taste trademark protection given the functionality doctrine. So, Coca-Cola can’t stop another from selling a beverage that has the same taste as Coca-Cola, just because it tastes the same, unless of course, the maker of the competitive beverage hired away key Coke employees who unlawfully revealed the closely guarded secret formula. That is how trade secret litigation happens, not "taste infringement" litigation.Continue Reading Taste Infringement?

Hat tip to Dave Taylor who provided this photo for some discussion:

Looks like a fellow named Mark Reese, currenting Acting Sheriff, is running for Sheriff in Lancaster Country, Pennsylvania, right in Hershey’s backyard.

Do you suppose this Hershey’s trade dress may have inspired the Acting Sheriff’s campaign?

 Your thoughts on whether Hershey’s

On April 15, Apple launched a massive suit against Samsung alleging various counts of patent and trademark infringement arising from Samsung’s Galaxy line of products. (The Complaint is here.)

While the lawsuit involved claims of trade dress infringement and patent infringement, I was most interested in the trade dress aspects of the case.  Of particular interest