[LINK] Open Source PC Design

[Craig Sanders]

On Mon, Jun 02, 2008 at 10:14:42AM +1000, Stephen Wilson wrote:
> Craig Sanders wrote:
> 
> > ... this deliberate confusion is what enables Cadbury to think they can
> > get away with claiming to own the colour purple
> 
> But they didn't claim this.  

that's EXACTLY what they are claiming.  That they, and ONLY they, have
the right to use the colour purple for chocolate and related products,
and that ANY use of that colour by anyone else for chocolate and related
products is an infringement of their property rights.

> They are claiming a trademark on the colour in a very specific
> context, in an effort to stop others passing off their chocolate as
> being Cadbury's.  Your argumentation is pure straw man.

don't be absurd. not even the most simple-minded cretin would think
for a moment that chocolate being sold in a Darell Lea shop with the
name "Darrel Lea" written prominently on it was somehow Cadbury's just
because the packaging was partly purple.  The effort was purely to
further their attempt to claim ownership of something (a colour) that
can not and should not be owned, and incidentally to cause harm to a
competitor.

for an interesting analysis of the case, the sequence of events, and
related issues see:

http://www.australiantrademarkslawblog.com/2008/04/articles/passing-off/cadburys-purple-patch-comes-to-an-end-for-now/

an excerpt:

  "A little bit of background to this latest decision is probably
  necessary for those who, for reasons only known to them, have failed
  to follow the fate of purple in Australian litigation. At the original
  trial in 2006, Justice Heerey found for Darrell Lea and held certain
  expert evidence from Cadbury inadmissible. While there was a lot of
  evidence that consumers associated purple with Cadbury chocolate,
  there was also a lot of evidence of uses by other chocolate makers of
  purple and many factors which distinguished Darrell Lea from Cadbury
  chocolate. For example, the words Darrell Lea written prominently
  on Darrell Lea chocolate were subtle hints to consumers that the
  chocolate in question was not Cadbury. Some consumers actually picked
  up on the point."

(i particularly like the sarcasm in the phrase "subtle hints to
consumers")


and another:

  "It is also worth noting that the big prize that Cadbury failed to
  obtain here is not just victory in this passing off case but a big
  step towards Cadbury successfully registering purple as a trade
  mark for chocolate. See the article by Lea Lewin in the Australian
  Trade Marks Law Blog on 11th February, 2008. If Cadbury can't
  convince a Federal Court that use of purple by other chocolate
  makers is misleading or deceptive, its prospects of obtaining that
  registration on the basis that its use of purple has led to purple
  being distinctive of its chocolates will be severely diminished."


> But to disclaim the meaningfulness of intellectual property full stop, 
> and then accuse others of stealing something that you say doesn't exist, 
> is crazy.

you're mis-representing what i said. i'm not saying that "intellectual
property" is being stolen, i'm saying that ideas are being stolen.

ideas obviously exist.

it's "intellectual property" that doesn't.  if anything's crazy, it's
the foolish notion that it does exist.

to take ideas from the commons and convert them into private property is
theft.

craig

-- 
craig sanders <cas at taz.net.au>

BOFH excuse #446:

Mailer-daemon is busy burning your message in hell.