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Thursday Topsight, October 11, 2007

aeron.jpgI have too many windows open to pages that I really would like to post extensive commentary on if I can just get around to it.

• Virtual Ownership: Herman Miller makes the Aeron chair, and (quite appropriately) doesn't like the idea of somebody else making an identical chair, especially if that somebody then calls that reproduction an "Aeron." But what about somebody who takes a picture of an Aeron, posts it on (say) a blog, and labels it "Aeron." Can Herman Miller claim ownership of that, too?

Most of us would likely say "no" to that scenario. But just this week, Herman Miller started going after Second Life designers who were making virtual chairs for the SL avatars, chairs that looked like Aerons and, at least in some cases, were called "Aerons."

"[W]e've contacted those parties and informed them of our trade dress protections, copyrights and trademarks they are infringing, asking politely but firmly that they cease and desist," the firm's spokesman, appropriately named MarkSchurman HermanMiller, tells me. "Some have complied, others have countered with proposed partnerships, and some have yet to respond."

And with that announcement, the first public salvo has been fired: a real world corporation is loudly and actively asserting its real world intellectual property rights against Resident-made objects which allegedly infringes them.

These Second Life knock-offs aren't "chairs" in any conventional definition of the word: they're database entries comprising a few lines of code. This code, under certain conditions, will put up an interactive cartoon of a chair that looks like an Aeron. You can't actually sit in it, you can't use it to build a physical Aeron (at least not yet), and it can appear or disappear with a few keystrokes.

What Herman Miller seems to be arguing is that what it actually owns is the concept of the Aeron chair look, no matter the medium in which it manifests.

This is a pretty striking assertion, but it's one that I would not be surprised to see reproduced as more companies start paying attention to the metaverse and more virtual worlds with user creation tools open up. I hope that it doesn't go unchallenged. Should Herman Miller be able to go after designers who made virtual chairs that looked like Aerons, but didn't in any way take that name? Should they be able to go after designers who make virtual chairs that share some attributes with Aerons, but are able to do things that real ones (or the "real" virtual ones) cannot?

As physical form becomes just another bit-based medium, we're starting to see many of the mistakes and controversies of the earlier generations of digital information (software, music, text and the like) replicated yet again. When will we be able to learn from the past?

(via open...)

• Mobile Phones vs. Sheer Evil: Ethan Zuckerman posts an astounding item over at "...My heart's in Accra."

Across the developing world, counterfeit pharmaceuticals have become a massive problem. Up to half of the packages of the anti-malaria drug artesunate sold in Southeast Asia contain no actual drug. More than 80% of the drugs sold in Nigeria in recent years, according to the head of Nigeria's Agency for Food and Drug Administration and Control, were fake. And legitimate pharmaceutical companies are apparently intimidating anyone trying to report this information to the broad public.

Fortunately, a new project called mPedigree may save the day:

The project, called mPedigree, seeks to build a system first in Ghana, and then throughout Africa, that tracks drugs from their original producers all the way to the pharmacy shelves, allowing each buyer in the chain to ensure that they’re dealing with a legimate product. The idea of this system comes from the ePedigree system being implemented to track medications in the US using RFID tags.

It’s probably prohibitively expensive to put RFID tags on every box of medicine coming into Ghana. But a system that takes advantage of the ubiquity of mobile phones in Ghana, allowing a purchaser to check whether the pills she’s buying in a pharmacy are registered and tracked would be a great use of appropriate technology to tackle a difficult problem. That’s what mPedigree proposes to do.

It's hard to imagine a more despicable act than counterfeiting lifesaving drugs. It's an enormous relief to see that a distributed, participatory solution may be at hand.

• Diesel-Electric Hybrids Go to War: Military.com reports that a new Army scouting and ground exploration vehicle is set to hit the streets of Baghdad -- and it's a battery-dominant (read: high-mileage) hybrid.

A wider, 66-in. body design makes room for high-performance acceleration -- as military vehicles go -- with the second-gen Aggressor set to rev from 0-40 mph in four seconds and top out at 80 mph. But speed is not the main attraction here; stealth is. The Aggressor’s design provides battery-only operations, allowing it to switch into “silent mode” with a reduced thermal signature. Combine that with extended range and exportable power, and this should be one tough-to-detect AMV for missions involving communications, surveillance and targeting.

There's a sub-culture in the US that values signifiers of aggression and power above other attributes in vehicles (primarily); this vehicle may broaden the symbolism of the hybrid car to include just these kinds of signifiers. Moreover, just like the HMMWV became the "Hummer" when it went civilian, there may be a stateside market for a street-legal version of the "Aggressor." If it keeps its battery-dominant diesel-electric drivetrain, it could even be among the higher-mileage hybrids on the road. Imagine that: a vehicle that could be both a phallic symbol and a green icon.


The Humvee became desirable and popular for civilian purchase on its own merits, though; it the time it was probably the best 4wd vehicle for offroading in the world. Now, whether or not it is rational to WANT that (at the expense of other issues like fuel and size) is a separate question, which I think we all agree on.

So, if the Aggressor is well executed and a solid vehicle, people will want it.

It takes one to be in Herman Millers' shoes to fully understand the complexities of Brand protection. As the original on-line dealer for Aeron chairs, I have first hand experience in watching their IP being abused all over the internet. For the past 10 years the Aeron chair has been fighting IP violations and knocks-offs, false claims, image reproduction, and bait and switch. Zero tolerance is really the only avenue that has any chance of working.

"What Herman Miller seems to be arguing is that what it actually owns is the concept of the Aeron chair look[...]"

Which is the entire point of trademark protection for visual style. Nobody can make a thing that looks like an Aeron, as H-M owns the right to that visual thing.

Mickey Mouse is a virtual creature, but I can't duplicate that image in virtual space. Architects get trademarks on the looks of their buildings so they can't be used in other media without permission of the trademark owner.

The "look" of an Aeron chair is an abstract concept, that's what H-M is working to project. In addition, they probably have a multitude of patents, including design patents, on how the thing is actually made and is used.

Same goes for having a trademark on a logo -- it prevents other people from using it without the owner's permission.

The upside (or downside, depending on your point of view) is that unlike copyright, things can lose trademark protection if the owner of the trademark does not take action against violators of trademarks.

Correct. If they want to retain protection of it in the future, they are more or less required to respond when made aware of violations now, even small ones.

Or so it was explained to me anyway.

"What Herman Miller seems to be arguing is that what it actually owns is the concept of the Aeron chair look[...]"

In addition to trademark protection, Miller may also own copyright rights in the "look" of the chair. The Copyright Act of 1976 explicitly allows for copyright protection of expression embodied in useful articles. The relevant language from section 101 is "the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the untilitarian aspects of the article."

Figuring out how to apply that language has proven very difficult. Courts have created several different tests, none of which are particularly useful. One of the most prominent tests is the Denicola test that asks what the creator's intent was when choosing a particular form or feature. If it was chosen for expressive reasons, then it is protected. If it was chosen for functional or utilitarian reasons, then there is no protection.

So, if Miller does own copyright rights, then yes posting a picture on a blog could infringe those rights. And Miller could also assert those rights against individuals who made exact virtual copies.

But keep four things in mind:

1. Even if he has copyright rights in the chair, he might not win. In the example of posting a picture to a blog, a finding of fair use is likely. A finding of fair use is, in my opinion, less likely in the example of an exact virtual copy.

2. Copyright protection in sculptural elements of useful articles is generally very "thin." It takes near exact replicas to infringe.

3. Copyright protection does not extend to functional aspects. If a design aspect contributes to functionality or was made for functionality reasons, then it will not be covered by copyright. We leave that to patents. This is where your use of the word "concept" introduces a little confusion into the discussion. Also note that this functionality restriction applies to trade dress and trademark protection as well.

4. None of what I have described goes to the question of whether Miller SHOULD have protection.

Note that the linked article also differentiates between trade dress which relates to the "look" as indicating source and trademarks which probably refers to the use of the Aeron name.

What do you think are the lessons from the past?

For me, it is that however nice a copyright/patent/trademark law might look like on paper, when technology advances and people start gaming the system, we should have a public discussion on how the law should be updated. We have had our share of copyright and patent controversies and now we are going to have trademark and design controversies. Yay.


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