Originally Posted by in stitches
lol at TH for the lame and shameless copy. lol at AP for suing. though i doubt even they think they can win, its probably more to make a point.
Agreed, I think its mainly to make a point. Same as Rolex and Cartier, spending millions each year going after counterfeiters. Even if you don't win, or can't stop everyone, it does send a message, and may deter smaller companies.
Originally Posted by Newcomer
I would not quite call it legal expertise, I have a fairly rudimentary understanding of IP law, but I will give it a shot! First, the Hodinkee comments do not seem very correct. They are making a trademark infringement claim rather than copyright. Vis-a-vis infringement of a "design" trademark, the trademark cannot be "functional." The functionality doctrine prevents trademark law, which seeks to promote competition by protecting a firm's reputation, form instead inhibiting legitimate competition by allowing a producer to control a useful product feature. Trademark cannot protect what should be protected by patent. In other words, if the screws give the watch a benefit over competition because of some advantage it bestows upon the watch, then it is not "trademarkable." A product feature is functional if it is essential to the use or purpose of the article or if it affects the cost or quality of the article, that is, if exclusive use of the feature would put competitors at a significant non-reputation-related disadvantage.
Functionality is a very low bar. I think the screws can easily be found to be functional. This is the same way a Submariner design is not trademarkable. It was designed to be a tool watch, which is by its very nature functional. I hope this is fairly clear.
Warning: Spoiler! (Click to show)
This could be 100% wrong
I'm not sure Hodinkee is a reputable place for legal matters. I've seen people write things about cases and totally miss the mark.
I like the disclaimer. I don't practice in the field of IP. I think your information is correct, but may matter theoretically more than in practice on this matter. If you have well healed clients, they will frequently file suit, just to make a point. They don't even care if they win, its merely to make the other guy spend money, harass him, and make him decide whether its worth it to try to defend a case, settle or, in this case stop the offending act. I don't think anyone in this case is going to mistaken that TH junk for an AP RO. If they do shame on them. Its like the idiots on other forums buying a Parrot Philippe on Ebay for $300 and then going on TZ to find out if its real.
There was a case where a company was using Corvettes with fiberglass body kits to build replicas of Ferraris that have been out of production for 10 year or more. Anyone with half a brain knew it wasn't real. There were so many blatant differences. IIRC, Ferrari sued them under the theory that it was a poor representation to the public of what a Ferrari is, and they put the company out of business. AP isn't going to put TH out of business, but they may become a headache for TH with a similar theory.
Certain laws may have changed since that case, but I think the real issue is simply to make a point. If you make replicas, homages, etc...we will spend the money and go after you. I would think fighting about some junky, costume type jewelry watch wouldn't be worth TH's time and they would work out a settlement and simply scrap that design.
I'll borrow your disclaimer if you don't mind : This could be 100% wrong.
Kind of looks like a bad mix between an Aquanaut homage and a Clerc. Also, thought it was very amusing that your daughter has the "Bruce Wayne" pose going with your 5711.