As Apple's recent lawsuit indicates, ownership of the look and feel of a product (and its packaging) is just as fiercely contested as the operational details of the product itself. But the look and feel of a product -- otherwise known as trade dress -- is the sum total of all of the small details that, on their own, cannot be copyrighted or patented. So how can a company own the intellectual property rights to the trade dress of a product?
On April 18th, 2011, Apple, Inc. sued Samsung Electronics Co, Ltd. for patent infringement, among a handful of other complaints. But the Samsung devices in question run on the Android operating system, and not Apple's proprietary Mac operating system. So what's the problem? The problem is that Apple claims Samsung is copying the "look and feel" of their products.What is the "look and feel" of an Apple product?So what is Apple's look and feel? It's the stark, sleek design of Apple's products. It's the clean packaging and sparse copy that make opening your new iPhone feel like an experience at a jewelers. It's all of the small details that lead to that feeling of exclusivity and pride that Apple consumers get when they purchase another product. It is, essentially, the presentation. While a lawsuit based on the look and feel of a product might sound trivial, in many cases, the threat of a company mistaking one product for another can be very real and result in real lost sales .Example of "look and feel"For a closer look at what constituted the look and feel of a product -- and how claiming ownership holds up in court -- let's look at an infringement case from 1989.Author Georgia Roulo created a line of greeting cards called "Feeling Sentimental." The cards consisted of a line from her book, in cursive font. The cards themselves had certain stylistic details, including two silver foil stripes, one brown stripe, and one colored stripe. The cards were sold for eighty cents in a special rack.Georgia Roulo's marketer, however, created his own line of greeting cards that looked very simlar to Roulo's. While the exact combination of stripes was slightly different, there were foil and colored stripes involved. The line in the middle of the card was also in cursive font, and the rack on which the cards were displayed was nearly identical to Roulo's. Other small, stylistic details were also the same.These and other similar details led Roulo to file a lawsu it against her marketer. His defense was that the details mentioned in the lawsuit were not legally protected, as copyright or patent protection would not give you exclusive rights to the use of a foil stripe or a font that looks hand-written. But in a case involving the look and feel of a product, it is not those individual detals that are in question. The issue here is whether an average consumer would know the difference between two similar cards. Because of the similarities, the court ruled in favor of Roulo. It was found that due to the second line of cards closely mirroring the look and feel of the original line, Roulo likely lost out on sales that would have otherwise been hers.What does this mean for Apple and Samsung?Set the iPad and the Galaxy Tab right next to each other, and you'd be hard-pressed to say the two do not have a fundamental set of characteristics in common. But is it reasonable to expect otherwise? Don't most desktop computers also have a very simila r look and feel -- as do most vacuum cleaners, jigsaws, and television sets?In other words, we must separate the look and feel -- the design, the presentation -- from the product itself. The ipad is, basically, a larger, more functional smartphone -- or a smaller, more portable personal computer, depending on how you look at it. This is an idea, and ideas are fundamentally unprotectable. When Samsung bases a product on the same idea, can we reasonably expect the end result to vary significantly from any other expression of that idea? These kinds of questions are decided on a case-by-case basis, and all of the companies involved understand the game -- to stay competitive, you need to take risks, and some of those risks might involve borrowing a little too heavily from your competitors.Will Samsung be found guilty of infringement? Maybe. Only time will tell. It's possible that a guilty ruling isn't even Apple's goal -- Apple, like many other technology companies, could simply be attempting to throw a wrench into their competitor's production schedule. But in the meantime, consumers can rest assured that with the flurry of lawsuits and counterlawsuits, this particular style of high-stakes competition will inevitably bring down prices as each company tries to position itself as the most attractive choice for your continuing consumer needs.
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