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To: "'framers@xxxxxxxxx'" <framers@xxxxxxxxx>
Subject: RE: Proprietary Templates?
From: Bill Fetzner <BFetzner@xxxxxxxxxxxxxx>
Date: Mon, 3 Jan 2000 13:46:16 -0600
Let me say first that I'm not a lawyer, but I've spent a little time learning about proprietary interest as it is represented by copyright, trademark and patent. My understanding is that the "look and feel" argument is related to patentability, where the argument is made to the patent office that something is novel, unobvious and useful. A patent goes to the utility of something, with construction or composition only important to the extent that utility is served. A copyright, in contrast, goes to the semantic content of a work, or in other words the "manner of expression." You could say the say thing as somebody else but in your own words and evade a copyright. However, if you said the same thing or used a substantial amount of the same text (there are rules as to what is substantial and for what purpose), then it would make no difference if you bolded some of it, put headings all over the place, put in some neat illustrations and presented it in multiple columns, the result would be a violation of the copyright. In other words, the content controls, not the layout. As for trademarking, that goes to the name of something used in commerce, not to the utility of the name or any degree of essence associated with it. The important factor with a trademark is how important that name is when associated with a product, i.e. the reason why Adobe wants it's Acrobat name trademarked because that essentially defines the nature of the product. On the basis of this analysis, I wouldn't personally worry about violating somebody's alleged copyright in a template because the template determines the format, not the content. I doubt that you'll be using the same words for the headings or the variables, etc. Sure, there is an element of utility to the template, but unless that has been patented (and I doubt they even tried given that it's an obvious use of well-known technology), they have no basis to gripe. Maybe the lawyer will give you a call, but the reason will be to thrown weight around (and perhaps make some money on an unestablished claim to proprietary rights), without an ability to present a prima facie case of those rights. ~ Bill ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Bill Fetzner, Tech. Writer firstname.lastname@example.org Electronic Theatre Controls ("We light up your life") ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ > ---------- > From: Hays, Dennis > Sent: Monday, January 3, 2000 12:27 PM > To: 'Colin Green'; 'email@example.com' > Subject: RE: Proprietary Templates? > > Colin, > > I can't make up your mind for you, but I can tell you that if there is a > possibility of the other company coming back and "asking" that you not use > the templates, they probably will, and if their counsel wants, may even > present a lawsuit. > > In the early 90s, Lotus Development sued Borland for the "look and feel" > of > the spreadsheet menuing format. I wouldn't be surprised that if a company > paid for the development of their templates, that they will have a > proprietary interest in keeping them branded as theirs. > > IMO, the techniques used in the template can be re-used, but the overall > look and feel would need to be reworked to protect this company's property > and branding. > > Dennis > > ** To unsubscribe, send a message to firstname.lastname@example.org ** ** with "unsubscribe framers" (no quotes) in the body. **