[Am-info] Microsoft Releasing Records to Lindows

[Hans Reiser]

This is a bad ruling.

First, the ruling is not about whether there is infringement, and they 
make that clear.

The ruling is about standards of proof of injury.

What is particularly discomforting about this ruling is that it is not 
easy to come up with simple well-defined measurement of actual damages.  
Let us suppose that I came out with Ben & Gerry's ice cream, and I used 
fancy packages and cheap ice cream.  Suppose I stole 5% of the market 
from Ben & Jerry's Ice Cream in this way.  Suppose that some of the 
customers knew which was which and some got confused.  Suppose my ice 
cream was cheaper, so some customers actually preferred my product for 
that reason.  Could damage to Ben & Jerry's be "proven" in a manner that 
would meet the standards of the court?  Probably not, and especially not 
cheaply and easily.

This is a bad ruling, reminiscent of the ones used to gut the anti-trust 
laws by making them unprovable.

Hans



Eric Bennett wrote:

>Mitch Stone wrote:
>  
>
>>This could be interesting... the "look and feel" lawsuit's been the
>>subject of much debate and speculation over the years. Perhaps now some
>>answers will come to light.
>>    
>>
>
>Also of interest is the Supreme Court's ruling yesterday in a lawsuit by
>Victoria's Secret filed for trademark infringement case against a small
>sex-paraphernalia store calling itself "Victor's Secret".  The court
>unanimously ruled that Victoria's Secret failed to show actual harm to its
>business and that there was no trademark infringement.  Since the Lindows
>case is very similar in broad respects -- a slightly changed spelling of a
>trademark -- that ruling increases the burden on Microsoft to show how
>Lindows' name causes damage.
>
>http://www.supremecourtus.gov/opinions/02pdf/01-1015.pdf
>
>  
>


-- 
Hans