| | VERY VERY VERY VERY IMPORTANT POST
ABOUT THE POWER CONSOLE TRADEMARK INFRINGEMENT
Recently, I got a lot of emails from the "texasphotoforum.com" forums (cool regional forum for texas area photographers) about a photographer named Ivan who knocked off our Album Software - including infringing on the trade dress properties we own in "Power Console" and especially, "Autodrop" trademarks.
To put it very simply, Trademark infringement is defined as "false designation of origin" which means that if you design a product, market it under identifying marks or "dress" so that it is unique, and somebody copies those identifying marks that make your product unique, you can recover lost sales in Federal Court. You can also recover triple the damages if it is willful, and under the new bankruptcy laws, you can recover wages until the losses are made whole, which could be an entire lifetime.
The standard for an action is "likelihood of confusion" - you don't even have to prove it. All the court needs to see is that the products are similar, or "appear" similar.
In this case, Ivan created the following console after posting on the forum: "
While i refuse to just hand him (Gary Fong) $100 for some photoshop actions, i
decided to make my own collection of actions for my album designing
needs." This pretty much satisfied the question of, "was it willful"
In comparing the two Power Consoles side by side, you can see direct evidence of trademark infringement because he actually used the term "Autodrop" as well as the appearance of the Power Console:
 
I think that pretty much passes the test of confusion in trade-dress.
He went on to write:
"How is it stealing if i can make my own actions? ... i did like his idea of compiling it together...i don't think i stole his "codes"
Just because you don't know something is against the law doesn't make it legal. It appears that he doesn't know the weight of his actions, but the problem is that he has put out software and he put it on an FTP server with no license agreement. So he cannot verify how many copies are out there, and he has to honor our guesses at damages. The damages are calculated by how many sales we may have lost, and since he doesn't have records, his liability could possibly last forever.
He has agreed to settle by reimbursing us $99 for every copy that has been downloaded from the FTP server or if you've been given his set of actions from somebody else. His software is called, "Ivan's Digital Book Actions" and I think he was up to version 1.3, which makes us think there are a lot of copies out there. If you have a copy, you may qualify for a reward. Just email me at "escalate@garyfong.com"
What is probably most crazy is that he gave it away free, so he's going to have to reimburse us for each copy. He can settle and pay us voluntarily, or we can take it through the federal courts, where he'd have to pay triple, plus all of our prosecuting costs.
Last time we sued on a Trademark issue in federal court, a jury awarded us $245,000 plus costs and attorney's fees: CLICK HERE TO READ THE JUDGEMENT
One thing I should add is that people wonder why I need to be so litigious. In this case as well as all prior trademark infringement cases, I have had to sue because to allow infringement weakens the strength of the mark.
A common question is why does this constitute copyright infringement? It doesn't. This constitutes trademark infringement, which is much more serious. Trademark infringements cause a confusion between two products, whereas copyright infringement is limited to text or visual arts reproductions. |
| | Posted 4/28/2006 10:14 AM - 2777 Views - 34 eProps - 29 comments
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