Too Close for Comfort II

As Jim points out, G.M. could have sought a "design patent" for the Hummer H2. (For all I know, it did.) The drawback is that a violation would have to be close to an exact copy; according to this FAQ from a patent law office, a design patent "protects the ornamental appearance of the object exactly as shown in the drawings." The requirements for a trademark claim are not so demanding. (Trademarks also can last forever, while a design patent has a term of 14 years.) Hence G.M. is trying to get design protection it would not otherwise enjoy by pretending that its real concern is consumer confusion.

Comments

[Warren]

B.S. The state of intellectual property law in this country is the great unsung political/economic issue. However much affection we Libertarians have for copyrights and patents (in theory), as things stand today, all intellectual property belongs to whoever has the highest paid lawyers.

[The Mountain Goat]

Had Coca-Cola patented its product, the recipie would be available for all to copy once the patent expired. Having instead trademarks on the name and how the name appears, these intellectual properties last forever. Of course, there are a lot of colas out there, and they don't violate Coke's trademark. Those colas are much closer to Coke? that these cars are to each other.

That said, both the patent and trademark offices are completely out of control. They are granting restricted property rights to things in the public domain. Harley recently filed for a trademark for the motorcycles exhaust sound. Pharmaceutial companies routinely are granted patents for metabolites: these are things we manufacture in our bodies. Nature makes us violate these patents.

[Jim]

Mountain Goat,

If that truly is the case, then something is indeed wrong because the quickest way to get a patent invalidated is to demonstrate that it is 'prior art' i.e. that it already existed. This is my point about the Hummer H2, in that Lamborghini had a similar looking (if uncommon) car in production since 1986, before street versions of the H1 Hummvee became available.

It is better to get a trademark, if possible, since as a representation of your company or product line it lasts theoretically forever, as long as the 'brand' exists. However using it as a tool to prevent anyone from making a similar (but demonstrably different) product is granting a monopoly that was never intended for trademark law. It was intended merely to prevent fraudulent counterfeiting of products and services that may harm consumers thinking they're buying something they are not.

[Lefty]

The Avanti hummer knockoff is 17 inches longer than the GM version. It's not a replica. Every car in America looks alike.

This is a frivolous lawsuit designed to drain resources from Avanti. The Court will dismiss it at its first opportunity, GM will appeal and in a couple years the suit will finally die quietly. It will cost Avanti hundreds of thousands of dollars.

Competition, GM style.