I know he has said it is expensive. I'm not sure that means it is too much. On BladeForums I have also seen it posted (not by Sal but by an informed poster) that "Spyderco is pursuing legal recourse" That doesn't sound like Spyderco is rolling over and playing dead on the issue.severedthumbs wrote:I thought it has been said by Sal in other threads that it would cost to much?
Thumbstud™ ?
Well, ethics and morals matter to me a HUGE deal. They always have. While I also used to question the validity of patenting/trademarking a circular hole in the blade used for opening, I no longer do.severedthumbs wrote:Sadly ethics don't much matter anymore. So why patent or trademark something you won't fight to defend?
Possible, but so many people use the Thumbstud, like Hob said, the Trademark or patent would not be allowed. Kinda like Ford or Honda trying to Patent or Trademark the Rim for a Car, just the idea of the rim.dialex wrote:Now I understand America is a country dominated by lawyers and the one that has the best lawyers will win, without any respect for right or wrong (OJ Simpson, anyone?)
And I'm among the first to be irritated by the shamelessly use of the round hole.
Yet, as a devil's advocate, I wonder... Let's take an ordinary knife making company. And this company trademarks a cylindrical thumbstud as an opening device... :confused: Comments, anyone?
Alex, that could only have happened at the point in history where they were either the only ones using the cylindrical thumbstud, or the only ones using it legally (meaning they had a prior patent on it which some other company or person had violated).dialex wrote:Now I understand America is a country dominated by lawyers and the one that has the best lawyers will win, without any respect for right or wrong (OJ Simpson, anyone?)
And I'm among the first to be irritated by the shamelessly use of the round hole.
Yet, as a devil's advocate, I wonder... Let's take an ordinary knife making company. And this company trademarks a cylindrical thumbstud as an opening device... :confused: Comments, anyone?
Here are the last two paragraphs:In fairness to the Sixth Circuit, in holding that the spring design was not functional, they relied upon the Supreme Court's (apparent) restrictive language of what is "functional" in the 1995 Qualitex decision, specifically, "If it affects the cost or the quality or the objective (nonreputational) desirability of competitors' products negatively enough, then the trade dress element may be deemed legally functional. Having any effect on cost or quality is not enough. Exclusive use of a feature must put competitors at a significant non-reputation-related disadvantage" before trade dress protection is denied on functionality grounds. Qualitex, 514 U.S. at 165.
My emphasis added.Last year in Samara, the Court explicitly directed lower courts to err on the side of denying trade dress protection for product designs. The Court in TrafFix gave a similar warning to potential litigants if they continued to make trade dress claims in features that were or could be covered by patents. "If, despite the rule that functional features may not be the subject of trade dress protection, a case arises in which trade dress becomes the practical equivalent of an expired utility patent, that will be time enough to consider the matter."
Thus, it is essential that clients and their lawyers consider functionality and its impact on trade dress claims prior to filing any utility patent application. Further, what is clear from the TrafFix decision is that those seeking to protect a product's design as an indicator of origin must be extremely careful in either a patent prosecution or even marketing literature about making any claim about the design that relates to functionality. The TrafFix Court ruling indicates that such claims will leave the design owner with an almost insurmountable burden to carry when seeking trade dress protection.
I am not a lawyer either, but you are missing the point, or one of them anyhow. It would be a matter of a competitor having to prove that a ROUND hole had significant functional advantage over an hole of any other shape. Example - the shape of a Coke bottle is trademarked. One can argue that the shape offers an improved grip. But there are other ways to improve the grip on a bottle, so allowing Coca Cola exclusive use of one specific shape does not put their competitors at a significant disadvantage. So the question becomes, is a round hole so much better than an oblong or egg shaped, or stellate, hole to cause genuine harm to those companies denied the use of it.IPSC wrote:I'm not a lawyer. If I were I would be billing clients $200 an hour instead of posting here :) The arm chair quarterback in me says Spyderco would probably lose this court case. I read the following from Spyerco: http://spyderco.com/edge-u-cation/index.php?item=7 and to me says the hole is all about function.
Good point Deacon.The Deacon wrote:I am not a lawyer either, but you are missing the point, or one of them anyhow. It would be a matter of a competitor having to prove that a ROUND hole had significant functional advantage over an hole of any other shape. Example - the shape of a Coke bottle is trademarked. One can argue that the shape offers an improved grip. But there are other ways to improve the grip on a bottle, so allowing Coca Cola exclusive use of one specific shape does not put their competitors at a significant disadvantage. So the question becomes, is a round hole so much better than an oblong or egg shaped, or stellate, hole to cause genuine harm to those companies denied the use of it.
I'm not sure that a competitor would have to prove in court that a hole is more functional that any other shape to win the case. From the following I believe all a competitor has to prove is that the hole is functional:The Deacon wrote:I am not a lawyer either, but you are missing the point, or one of them anyhow. It would be a matter of a competitor having to prove that a ROUND hole had significant functional advantage over an hole of any other shape. Example - the shape of a Coke bottle is trademarked. One can argue that the shape offers an improved grip. But there are other ways to improve the grip on a bottle, so allowing Coca Cola exclusive use of one specific shape does not put their competitors at a significant disadvantage. So the question becomes, is a round hole so much better than an oblong or egg shaped, or stellate, hole to cause genuine harm to those companies denied the use of it.
Interestingly, the Court decided the TrafFix case without ruling on the issue that it had certified, namely, whether the Patent Clause of the Constitution, Art. I, §8, cl. 8, prohibits the holder of an expired utility patent from claiming trade dress protection. The Court stated only that it need not resolve this question, but made it clear that claims of trade dress in functional features are prohibited.
The Court also provided a warning for would-be trade dress claimants and their counsel when there is a question as to functionality. The Court stated that a utility patent is strong evidence that the features therein claimed are functional. Thus, if trade dress protection is sought for such features, the fact that there is a prior patent merely adds additional strong evidence of functionality to the already strong statutory presumption that functional features are unprotectible. The Court also suggested that when parties attempt to claim trade dress in expired patents that may be considered functional, trial courts should examine the patent and its prosecution file history to see if the feature in question was a useful part of the invention.
Your right on that. If a company has problem with Spyerco's trademarks they should have the issue settled in court before making knives that feature the round hole.HoB wrote:IPSC: I think that is exactly the point here. Every competitor of Spyderco is of course free to charge Spyderco's trademark claim, and if it is decided that the trademark of the hole should be revoked, then everybody is free to use it.
But that is not what is happening. Instead, you get armchair arguments that the trademark should have never been given and therefore it is perfectly fine to disrespect it. But as long as it isn't revoked in court it remains a legal trademark regardless of what arguments one can field against it.
We really should drop this subject! Let the new guys use the "search function".
severedthumbs wrote:So what if Benchmade says "that hole isn't for opening the knife, it is just for decoration, to open the blade you grasp the blade down here and pull it up to open". Is there anyway to disprove that?
let's all keep it positive people! 
