Tuesday, August 2, 2011

The Courts on a Roll

I once did an entire posting on toilet paper, and admitted the irony of having gone to graduate school in English so that I could produce such a piece of writing. Apparently I'm not the only one with toilet paper being kept in mind. A case involving toilet paper is wending its way upwards in the US court system. Given all the weighty matters that should be occupying our minds, why are we clogging the drains of the judicial system with soggy wads like this one?



Yedid Nefesh said...

Ha, it never cease to amaze me how justice sometimes focuses on the smaller detail that appear to be insignificant
Perhaps it's easier to pretend the world is somewhat normal???

Trudy said...

Seriously, do these manufacturers really believe that we consumers buy toilet paper with the most important aspect being whether there is quilting and if the quilting is diamond shaped? Someone should explain to them that their product is about the most wipes for the money spent. I couldn't care less how pretty the paper is.

Miami Al said...


They probably know more about what determines sales of their product. The conduct tons of market research. It's not perfect, but they aren't going off "beliefs" they go off hard data.

Marketing is a science, a soft science, but a science nonetheless.

Miami Al said...

"Last year it held that circular beach towels once sold by actor Woody Harrelson couldn't be trademarked either."

I know one of the owners of that trademark that was thrown out. It was a pretty serious thing, ruling that an unusual shape that serves no functional purpose is not a trademark.

That decision wiped out a bunch of people.

It's a shame, you can't get a patent for your unusual shape, a limited monopoly, because it has no functional purpose. Now you can't get a trademark to define you either. Whatever people come up with to be unique can now be knocked off in China...

It's a shame, why can't a competing company do shapes OTHER than quilts so companies can differentiate a little. I'm extreme liberal on intellectual property, but this seemed like a good use of trademark law.

JS said...

It's actually a very interesting case even if the subject matter seems mundane. I haven't read the opinion of the briefs, but I can shed some light on the overarching issues.

There are 3 types of protection for intellectual property: patents, trademarks, and copyrights. The most relevant for this case are patents and trademarks. There are two types of patents: utility and design. A utility patent protects a functional idea - a process, machine, manufacture, composition of matter, or any new and useful improvement thereof. This is the most familiar form of a patent. You can also get a design patent which covers the ornamental design of a functional item. An example would be the shape of a coke bottle or the mercedes logo. However, patents have a limited term; they expire.

Trademarks on the other hand can exist in perpetuity. A trademark covers any distinctive element that identifies the product with its source (the manufacturer). So, the coke bottle design can also be a trademark and, in fact, is more valuable as a trademark since it exists forever. You may think "Oh, who cares about the shape of a coke bottle?" But, market research would prove you wrong. In fact, the shape of a coke bottle is a VERY valuable trademark. Even the red color of the bottles could be considered a trademark. There's a lot of very deep psychological elements that go into highly valuable trademarks. The shape of the bottle makes you think "Coke" and makes you think of refreshment for example. The trademark indicates the source of the product and the source is associated with quality and other goodwill.

That brings us to the toilet paper case. The issue centered around whether the diamond quilted pattern is functional. You can't get a trademark on a functional item. That would subvert the patent system. For example, if there was no other way of making a bottle other than the hourglass Coke bottle design, Coke couldn't trademark the bottle shape as it would preclude all soft drink manufacturers from bottling their beverages.

But, if you can thread the needle and get something that is functional appear to be non-functional, you have a VERY VERY valuable trademark. For example, Harley Davidson tried to trademark the distinctive sound of its motorcycles (ultimately it withdrew its application). Similarly, if people PERCEIVE something non-functional to be functional, you have a VERY VERY valuable trademark. For example, Owens-Corning has a trademark on the color pink for insulation. Most people don't even know insulation is naturally tan and associate the very idea of insulation with pink.

This is what was at issue here. Are the diamond quilts functional or non-functional? Considering it's likely that tens of millions were spent on this lawsuit, I'd estimate the value of those quilted diamonds at somewhere in the hundreds of millions of annual sales. This isn't small potatoes. Ultimately, they lost because they had utility patents on the manufacturing methods that spoke to the utilitarian function of the quilted diamonds and their advertisements touted the benefits of the feature in terms of softness and strength and absorption.

In short, a pretty interesting issue if you ask me.

JS said...


Actually, the towel case was also decided on this functional issue. The judge held that a circle is a useful design element and that a trademark on it would blur the boundaries between patent and trademark. I think the best comparison would be if everyone was making square and rectangular tables and then someone came up with the idea for a round table. The circular table couldn't be trademarked, but it could be patented.

This is one of those areas at the boundary of the two regimes where things get messy (but the law gets interesting).

Miami Al said...


With the towel case, all the lower courts had recognized that the circular shape served no functional purpose.

The way you make a round towel is you make a square towel, cut it round, sew the end. The "function" was that as the sun moved, you moved and left the towel alone. The reason that this isn't functional is that has they left the big square towel (same material, just not cut as waste) you could ALSO move.

The judge was correct, the towel being round has a functional purpose of sorts, but not really, since the round towel is a square towel with the corners cut.

The difference is a circular table is different from a square table, you use less space, etc., and get more people in the same area... not the case with the square towel with the corners removed, that was just cool and gimicky...

Clearly not functional, do you see people making them? They were marketed as promotional items after the celebrity sales pitch flopped, then someone knocked them off and ended up in a big lawsuit.