[LINK] Open Source PC Design

Stephen Wilson swilson at lockstep.com.au
Mon Jun 2 13:34:51 AEST 2008


You can shout all you like, and call people cretins, but as far as I can 
see, you make a habit of caricaturing various IP cases in a rather silly 
effort to create an overall impression that IP is an evil enterprise.

For instance, you said without any qualification that "Cadbury [think] 
they can get away with claiming to own the colour purple".  But then you 
later showed some detailed understanding that this case is indeed about 
trademarking the packaging of chocolate.  That's quite a gap over 
outright 'ownership'.

And you claim over and over that "intellectual property doesn't exist", 
as if stridency and sheer repetition add force to your argument.  "IP" 
is a label coined to refer to patents, copyrights etc.  There are well 
understood protocols for converting ideas into "IP" by various routes. 
Some of these newer routes -- such as gene patents -- are controversial 
and may well be evil.  And the way that big businesses use patents to 
create monopolies is sometimes abhorrent.  So, like most human 
endeavours, IP is not problem free.

But what do you actually propose?  Abolish patents, trademarks and 
copyrights overnight and what would you achieve?  Do you think that all 
Monsantos and horrible project home companies will be vanquished in a 
flash by this simplistic, legalistic and totally fantastic paradigm 
shift of yours?

Umm ... get real!


Stephen Wilson
Managing Director

Phone +61 (0)414 488 851

Lockstep Consulting provides independent specialist advice and analysis
on authentication, PKI and smartcards.  Lockstep Technologies develops
unique new smart ID solutions that safeguard identity and privacy.

Craig Sanders wrote:
> 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

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