Is the color red functional for shoe outsoles?
- Judge Victor Marrero recently decided the famous Louboutin red outsole trademark case and decided that the color red is functional for shoe soles. Lanham 2(e) (5) states that "no trademark…shall be refused registration…unless it– comprises any matter that, as a whole, is functional." This was a difficult case to decide, counsel for both sides made great arguments. I think the Judge had a difficult job, and basically looked at the impact the case would have on trademark law and the market. Judge Marrero stated "if Louboutin owns Chinese Red for the outsole of that another designer high fashion women's shoes, another designer can just as well stake out a claim for exclusive use of another shade of red or even Louboutin's color, for the insole…" Judge Marrero seems to think that the flood gates would open and individuals would want to trademark a color for all types and aspects of shoes. In theory Judge Marrero is 100% correct, however, I am not sure if I agree with Judge Marrero since the trademark was granted in 2008 and I have not seen any other shoe maker using colored outsoles. I am sure Louboutin will appeal the decision to cancel the red outsole trademark if the decision is finalized on August 17, 2011. [Opinion]
Mark Cuban—My Suggestion on Patent Law
- Mark Cuban is the outspoken owner of the NBA champion Dallas Mavericks and he wanted to express his view of the patent system. Mark suggests that the solution to the patent system is to end all software patents and all process patents. He believes that software has enough protection because it is copyrightable and process patents have no purpose at all. Some benefits of eliminating process and software patents that Mark proposes are: reducing court room costs, improving the efficiency of the Patent Office, ending the current patent arms race, and creating jobs. [Link]
Will Gene Patents Impede Whole Genome Sequencing?
- Professor Chris Holman of UMKC law school and Holman's Biotech IP Blog is in the process of finalizing an article entitled "Will Gene Patents Impede Whole Genome Sequencing?: Deconstructing the Myth That 20% of the Human Genome Is Patented". In the article Professor Holman points out that many people believe that over 20% of the genome is patented and that these patents preclude researchers from studying or even looking at the patented genes. However, Holman calls this a misperception and there is no reason to believe that 20% of human genes are off-limits. Holman states that a vast majority of human gene patents were drafted in a manner that would not encompass whole genome sequencing. [Link]
Patent Jobs:
- Gifford, Krass, Anderson, Sprinkle & Citkowski is seeking a partner for its Ann Arbor, MI office. [Link]
- Morris & Kamlay is seeking a patent attorney with a technology/science background to work in their Washington, D.C. office. [Link]
- Rutan & Tucker is searching for 2 patent agents with 2-4 years of experience and a science background. [Link]
- The American Intellectual Property Law Association (AIPLA) is seeking an individual to fill its Deputy Executive Director -International & Regulatory position. [Link]
- Kraft Foods is searching for a patent attorney with a minimum 5 years of experience. [Link]
- Los Alamos National Security is seeking a patent attorney with a minimum of 8 years of experience. [Link]
Upcoming Events:
- The 2nd European Pharmaceutical Regulatory Law Forum will be held in Brussels, Belgium September 21-22nd. The forum will focus on recent developments affecting the pharma industry in Europe and will discuss the impact of US developments on European companies. (Patently-O readers can register with code PO 10 for a 10% discount) [Link]
- American Conference Institute's Life Sciences Business Development & Acquisitions in Emerging Markets conference is scheduled for September 26-27 in New York, NY. (Patently-O readers can register with code PO 200 for a discount) [Link]
- Boston University School of Law and the Kauffman Foundation will be holding a Workshop on Innovation and Patent Harmonization at Boston University School of Management on September 30-October 1. The workshop will cover the effect of harmonization in both advanced countries, such as the US, and in developing nations, with a particular focus on China. Anyone interested in attending, please RSVP to Elizabeth Aggot at eaa@bu.edu. [Link]
- American Conference Institute's 12th Annual Maximizing Pharmaceutical Patent Life Cycles will take place in New York on October 4th-5th. The conference is one of the leading sources of information and analysis on the patent life cycle management. (Patently-O readers can register with code PO 200 for a discount) [Link]
- C5 will be holding the 21st annual Forum on Biotech Patenting in London on October 5th-6th. The 2011 London Biotech Patenting Forum will focus on the latest legal developments affecting biotech companies and how to implement successful methods and strategies for drafting and filing patent applications in multiple jurisdictions. (Patently-O readers can save 100 pounds by using discount code PO 100) [Link]
- American Conference Institute will be holding a FDA Boot Camp Device Edition conference on October 25th-October 26th in Chicago. (Patently-O readers can register with code PO 200 for a discount) [Link]
- IPMI is holding the IP Law & Management Institute on November 6th – 8th at the Rancho Las Palmas in Palm Springs, CA. Hailed as "One of the few programs geared to experienced in-house IP Counsel", the Institute is a CLE-accredited program designed to provide time-starved Heads of IP with the Opportunity to meet and network with their peers, learn from the best practices and validate solutions and services. [Link]
Contact Lawrence.Higgins@patentlyo.com with leads for future Bits and Bytes.
It’s great to read a law related blog. We can certainly learn from it.
I think patent process will has something really interested to be into. I really appreciate your effort of stating brilliant and great information here. And thank you for that.
“It’s just a bunch of naked assertions unsupported by any rational argument…
For that reason alone, it could pass for patent legal “scholarship,” Congressional “debate,” or a Mooney post…
6 your answer WAS a dictionary example of circular reasoning. Of course whenever I challenge you for definitions, case law, or examples you wilt.
Still not working……..
Dennis??
This is the old debate about “aesthetic utility”.
There are no objective criteria against which to measure responses to stimuli from an “aesthetic” perspective.
I’m not going to waste my time on this other than to say that not only are there no universally objective and verifiable criteria for “sexiness”, the concept hasn’t even been related to an identified function.
I know you guys are trolling me on this one, and I won’t respond any further than I already have.
Marrero didn’t just do something as minor as arriving at an incorrect or unfortunate decision–his manner of deciding, or at least his articulation of that process, is an affront to the entire process of rational reasoning, and represents a total failure to discharge the duties of his public office to the maintenance of social order.
In this decision, he has not demonstrated any competence to discharge his essential duty.
His is an invitation to anarchy, and he is no different than anybody, such as Mooney, who relies on conclusory statements to justify the naked exercise of power.
This must be exposed and resisted as soon as, and in every way, possible.
Read the opinion.
You can follow him on Google+ … I saw his post on this. If you’re company is getting sued for patent infringement, your viewpoint is obviously very different than one who is protecting themselves with it.
I guess those things we call dictionaries are just using “circular” reasoning.
snnnifffff.
Whew, that last comment smells kinda funny.
Malcolm,
You seem a bit sensitive. Is your neck hurting from looking up at the scoreboard?
T O O L
This is not a new concept to these boards, as “Incompetent” means “disagrees with ____________” has long been a standard argument and has appeared regularly in the guise of “not being able to read” and not being able to write” among other such phrases.
But not nearly as often as the use of sockpuppets to disguise the fact that one’s comments are nearly always factually incorrect, completely missing the point, completely lacking in substance, generally insulting but lacking in specifics that would allow one to understand what the commenter is referring to, or so incredibly poorly written that one is inevitably forced to guess what the author is talking about.
Mr./Mrs. “Under the Sun” can go take a bath, along with all the other shxt-slinging patent txxbxggers who troll here.
As for IBP, I’d like to see him justify his comments about Judge Marrero with some direct quotes from the decision, and explanations as to why those quotes so deeply offend his/her sensibilities. On the other hand, anyone who writes something as mind-numbingly daft as “I see this decision as symptomatic of a broader problem of incompetence in the public sector” should probably just be ignored.
And although I did gather at one time Kent may have already been published, and it was illegally brought back form the dead. That still does not account for my Single thin wide and elongated Art.
so whether you brought it back or made it up. It is all still the same in regards to the foldable Fender.
If that is why it wasn’t bought.. no matter. there was no single in the Kent, only foldable.
Fraud, extortion, RAPE! Civil Rights violations including slavery.
So even if you did slap a Design to it, with the History that wouldn’t change a thing. It would only MASK IT!… It’s still Mine!
I always wondered why the “Fake Patent” that I thought was real.. was never infringed. Because it would have been a RED FLAG. The Picture of the solid swim Platform alone with the Jet Ski Fender was all I was given. But in Feb of 1996 they had a design around fender called Kent. that dropped down along with the Inventor from Canada. PPE came after 1990!
And Kent is fake, and the Jet Ski fender represents ART that would invalidate KENT in my Claim 1 of 08,546,033 then that would be Prior ART now wouldn’t it.
So on September 26th 1996 when the second one ( the CIP) was filed it was then attached to what was stolen to make it look all warm and fuzzy!
Do you need a MAP TRY AGAIN?
So of course a TRICK forced the 08,788,545.. they pulled the Power out… But the Power was already MOOT in July of 1997. And I was never given anything to show it had been filed .. just empty envelopes with fake stamps form the USPTO! And of course loads of fake Marketing Charges for my Patent and Application that were already stolen.
So the two Attests in 08,677,556 should represent only the 08,546,033 that was stolen, and the first 08,677,556!!!!!!!
So with 08,788,545 just sitting there FAKE! Even though it is invalid and of course because of that it was never filed, but the Cr@p is represented on the 08,677,556 that is just sitting there.. I wait.. and wait.. I paid the fees for 08,546,033 and 08,677,556.
When I paid for 08,546,033 to print it was supposed to be what the 08,546,033 almost says now!
How can someone Infringe what has really never been validated and stolen? But both have been paid for!
“‘Incompetent’ now apparently means ‘disagrees with Inviting Body Punches.’ ”
This is not a new concept to these boards, as “Incompetent” means “disagrees with ____________” has long been a standard argument and has appeared regularly in the guise of “not being able to read” and not being able to write” among other such phrases.
This denigrating of those with whom you disagree is a rather pedestrian rhetorical device.
Circular reasoning only leads to chasing your tail.
A method not pertaining to industry and/or not having industrial applicability.
Holy crxp, I need to proofread my comments more carefully …
Judge Marrero seems to think that the flood gates would open and individuals would want to trademark a color for all types and aspects of shoes.
And every part of all other articles of clothing.
In theory Judge Marrero is 100% correct, however, I am not sure if I agree with Judge Marrero since the trademark was granted in 2008 and I have not seen any other shoe maker using colored outsoles.
Note to self: some people pay much closer attention to shoewear than I do.
Judge Marrero seems to think that the flood gates would open and individuals would want to trademark a color for all types and aspects of shoes.
And everthing other article of clothing.
In theory Judge Marrero is 100% correct, however, I am not sure if I agree with Judge Marrero since the trademark was granted in 2008 and I have not seen any other shoe maker using colored outsoles.
Note to self: some people pay much closer to attention to shoewear than I do.
Read the opinion.
Knowing only the result, I expected to read the opinion and come away unpersuaded. The red soles plainly have secondary meaning, so in theory this should be an open-and-shut case. Courts have allowed companies to trademark individual colors applied to specific goods before… so what’s the problem here?
Judge Marrero argues, somewhat persuasively, that the fashion industry is different from the other cases because it’s all about aesthetics. You can trademark designs or logos, but allowing a company in the fashion industry to have exclusive rights to a color is highly problematic. The color of a dry-cleaning pad isn’t functional. But in the fashion industry, the color of the soles of a $1000 pair of shoes may well be functional.
I’m still not sure if I agree, but the opinion is surprisingly persuasive… even if the writing style is a little much.
08,677,556 was paid for and set to print. That is the only way (illegally I might add, because it was stolen!)08,546,033 ever really saw the light of day until then. So the BLUE one legally should be allowed!. Because it wasn’t me that committed the Crimes now was it? And we know the “FIRST TRADEMARK does EXIST!” So why was 08,788,545 ever allowed to appear to cr@p on 08,677,556, they were fired? The two Attests on 08,677,556 are 08,546,033 and 08,677,556 PERIOD! Or at least they should be. The third is not necessary.And never was!
“Incompetent” now apparently means “disagrees with Inviting Body Punches.” I read the opinion, and while it is a bit overly florid (someone’s trying to get into the casebooks, perhaps?), it looks quite competent to me. It also doesn’t seem to be breaking any new ground. Ornamentation is a key function of apparel – Loboutin is asking the courts to divide the color wheel up among clothing manufacturers – that’s just insane, and as far as I can tell is contrary to what law there is on color alone as a mark.
Perhaps another way to look at this case is from the standpoint of genericness. For apparel, it seems to me that any color is generic in the sense that clothes makers will use any color they can create. It’s at least arguably different for insulation or for an industrial product – the use of pink for a product that is meant to be hidden, or the use of green for a particular type of industrial cleaning cloth is arbitrary.
Read the decision and you will understand why I feel this way.
Oh, c’mon, give us a quote at least.
6: “Of course, this is in direct contradiction to your everyday non-industrial method claim.”
Oh please 6 define a non industrial method claim.
::Silence::
As usual.
Dennis–
The “Show More Comments” link on the following thread is not working:
link to patentlyo.com
Help!
Has anybody here read the decision?
The so-called “reasoning” regarding functionality is amazing, and appalling.
This decision supports the increasingly popular perception of district court proceedings as merely a necessary prelude to appeal, where the essential activity is one of preserving issues for appeal.
“Judge” (I choke on the word) Victor Marrero has proven himself incompetent to have adjudicated this case.
Read the decision and you will understand why I feel this way. Unfortunately I see this decision as symptomatic of a broader problem of incompetence in the public sector, extending of course to the judiciary, whether elected or appointed.
There is nothing good about this. It is appalling, and frightening.
“The founding fathers also thought that slavery was a good idea for the economy.”
Be careful with this analogy, Malcolm. Admittedly, there were a number of “founding fathers,” especially in the southern states, who (unfortunately) felt slavery was a good idea and absolutely necessary to support the southern plantation economy. As has come out in recent studies, Thomas Jefferson was particularly duplicitous on this issue in terms of his talk (against slavery) versus his actions (supporting slavery). But, George Washington, for example, realized that slavery, in the end, was eventually going to be very bad for the southern economy, and was gradually trying wean even his own plantations off of it. I also agree that the morality of slavery, including using Biblical quotes to defend this rephrensible practice (often referred to by southerner’s as their “peculiar institution”) is one of the “darker” aspects of our American history that still affects us to this day.
This world is not conclusion;
A sequel stands beyond,
Invisible, as music,
But positive, as sound.
It beckons and it baffles;
Philosophies don’t know,
And through a riddle, at the last,
Sagacity must go.
To guess it puzzles scholars;
To gain it, men have shown
Contempt of generations,
And crucifixion known.
I’m curious MM, how many patents covering whole genome sequencing does it take to stop it?
You’d have to ask a judge. It would take some chutzpah to try to enjoin a whole genome sequencer based on the chance amplification of a few hundred nucleotides out of 3 billion.
Maybe Introllectual Ventures will buy some gene patents and try it, though. That would be fun.
Thanks for perpetuating that bald faced lie mooney. Should have known you could be counted on for that.
This post proves two things:
1. You don’t care about facts.
2. You’ve never actually read about the founders.
I’m curious MM, how many patents covering whole genome sequencing does it take to stop it? Was it one? How many are left over from “most” being not drafted in that way?
In the article Professor Holman points out that many people believe that over 20% of the genome is patented and that these patents preclude researchers from studying or even looking at the patented genes. However, Holman calls this a misperception and there is no reason to believe that 20% of human genes are off-limits. Holman states that a vast majority of human gene patents were drafted in a manner that would not encompass whole genome sequencing.
Oops, another academic making trouble again with his pesky facts. 😉
Thanks for the link, LH!
Eliminating the patent system would IMPROVE economic expansion and job creation in the US? The founding fathers disagreed
The founding fathers also thought that slavery was a good idea for the economy.
How’d that work out?
Read more carefully, Mark Cuban’s position is that we should eliminate all patent protection and make the U.S. like China, a country of copycats and ripoff artists, where investment in innovation would be rewarded with a kick into the gutter. There is nothing substantive to be found in his remarks, just an ignorant fondness (or worse, an absurd nostalgia) for a legal Dark Ages and a misunderstanding of why China has an economy that is perceived to be strong.
I’ve never done an acquisition for a tech company that didn’t have an application on file. Without that application, your idea and efforts are worthless. It doesn’t take an economist to understand that.
No, it’s tuff. link to youtube.com
Couldn’t agree more. Cuban needs to stick to what he knows, which is basketball, not patents.
lulz mark made it to the front page of yahoo as well
link to thepostgame.com
Eliminating the patent system may or may not improve economic expansion and job creation. I don’t know the answer to that. I’ll leave that to economists and such, but in the meantime I’ll work within the system.
But, what the heck to the founding fathers have to do with this? Who cares whether they agreed or not. It’s not blasphemy to say that the founding fathers were occasionally wrong — I think that’s why we have all the amendments, you know, abolishing slavery, changing how the Senate is elected, etc. What’s with all these people as of late who worship the “founding fathers” as deities?
Further, the founding fathers gave Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” It never said they had to use that power or even how they should use the power.
That’s exactly what we should be constantly debating and improving the system if necessary. I hope my job and patents benefit the economy, but if not, I’ll move on and do something else. I won’t simply cross my fingers and be a denier just to save my paycheck.
I’d have to agree with Leopold.
However, he’s sharing too much information about his dress collection.
It’s “tough” not “tuff.”
Eliminating the patent system would IMPROVE economic expansion and job creation in the US? The founding fathers disagreed, and I’m sure there are quite a few left coasters that are wondering how in the world Mark Cuban managed to find success.
Cuban on patents? What?
I am pretty sure that style and taste are not covered by the the meaning of “function,” and given that color is an attribute allowed, this decision is plainly wrong
Please explain what function is served by “red.”
It goes well with my red dress. That hideous pink sole, on the other hand …
In theory, the judge is 100% wrong.
This is a soleless decision.
Please explain what function is served by “red.”
Letting the fear of what others may try to stake out is no reason to bastardize the expressly written law.
Let others attempt to stake out colors and let the system judge each according to the legal dictates. If another color is in use, or other qualifying reason for refusal, the system will reach the correct decision.
We do not need judges rewriting the law to suit their notion of what the law should say. That’s what we pay our legislators for.
“It’s just a bunch of naked assertions unsupported by any rational argument”
Fits in perfectly here, doesn’t it?
You forgot to mention that China allows its land to be “ra_ped” to an unprecedented degree. Something that would never be allowed in today’s good ol US of A.
Da_mm, it is expensive to comply with all of those environmental regulations.
Is Mark Cuba’s article supposed to be comic relief? It’s just a bunch of naked assertions unsupported by any rational argument. As for the implied relationship between China’s IP laws and its booming economy, he neglects to point out that Somalia has weak IP laws too. Nor does he point out that perhaps China’s loose labor laws might be responsible for some of its economic output.
ERKELEY, Calif., Aug 4, 2011 (GlobeNewswire via COMTEX) — XOMA Ltd. XOMA +2.11% , a leader in the discovery and development of therapeutic antibodies, today announced its financial results for the second quarter and six months ended June 30, 2011 and provided a general business update.
XOMA had total revenues of $16.5 million in the second quarter of 2011 compared with $5.9 million in the second quarter of 2010. The increase in revenues in the 2011 period compared with the 2010 period was due primarily to funding from the company’s collaborative partner Les Laboratoires Servier (Servier) for XOMA 052 development and increased funding under the company’s contracts with the U.S. government for XOMA 3AB development.
“•Mark Cuban is the outspoken owner of the NBA champion Dallas Mavericks and he wanted to express his view of the patent system. Mark suggests that the solution to the patent system is to end all software patents and all process patents. He believes that software has enough protection because it is copyrightable and process patents have no purpose at all. Some benefits of eliminating process and software patents that Mark proposes are: reducing court room costs, improving the efficiency of the Patent Office, ending the current patent arms race, and creating jobs. ”
You are the man Mark Cuban. Although I have to disagree with you on one small issue Mark, there are a great many industrial methods which will be hidden from the world forever if we do not allow people to patent them. This would not be an ideal situation, and generally the people’s of the world don’t pay a lot to obtain this information in contrast to the amount they spend on software nonsense for so little in return. And just btw, this disclosure is the purpose method patents serve on industrial processes. Of course, this is in direct contradiction to your everyday non-industrial method claim. Note how Europe has a nice way of getting rid of such process claims, such as creating an industrial applicability requirement.
Indeed, if you spent the day with me I believe you might change your mind about methods. Although I doubt you’d change much on the software issue.
Process patents have no purpose at all, Mr. Cuban? Wow, I didn’t know that. Thanks for sharing your brilliance with our field, kind sir!
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