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RE: Proprietary Templates?

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
Electronic Theatre Controls ("We light up your life")

> ----------
> From: 	Hays, Dennis  
> Sent: 	Monday, January 3, 2000 12:27 PM
> To: 	'Colin Green'; 'framers@omsys.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

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