42 Comments

Your article is dangerously uninformed. Nobody should rely on anything you have said as you seem not to know the differences among copyright, trademark, and patent and never address trade dress.

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That as what I was going to come and say.....

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Heck. I learned a lot here. I didn’t expect a law review depth. I doubt anybody is going to rely on this bit of journalism for anything but general information and your comments, Mr Husick strike as unreasonably harsh and hostile why is that?

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As an Intellectual Property attorney, I have to deal with such misconceptions all the time and people make very expensive mistakes based on having an incorrect view of the law. A little knowledge is a dangerous thing, and this writer has a little knowledge and lives dangerously.

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Alexander Pope in fact wrote ‘A little learning is a dangerous thing’; and even if you had quoted him correctly the fact that a poet in 18th century expressed an idea in a way that appealed doesn’t make it in any way true in principle or compelling as argument.

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The writer is a simpleton and literally dislikes free market economics and capitalism. She's a piece of shiz

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But copyrights, trademarks, and patents are different things. The only reason that would seem pedantic is if one doesn’t understand that they are different things. It makes sense to patent a process that produces a unique and useful product. It makes sense to trademark a brand and branding elements (including color). Copyrighting a color makes no sense in any context. Titles can’t be copyrighted. Words can’t be copyrighted. And certainly a color can’t be copyrighted.

But, hey, let’s just use all those legal terms interchangeably because the average reader doesn’t understand these things. The truth is, the conversation gets a lot more interesting when you do understand these things.

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But wasnt that discussed in the article albeit in a simple way? I guess this piece was aimed at a lower level than you; I am a physician and I usually try to aim my explanations at an appropriate level for my patients and trust that they will tell me if I am too simple or too complex. If I meet hostility on this account we stop and address that since I cannot effectively care for a hostile patient. I see this situation as being analogous. If the piece was too simple for you, or whoever, then you are not the target audience. If the piece were much more legalistically detailed, I would have moved on myself. As Dr McCoy would have said "I'm a doctor, JIm, not a lawyer!"

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Fair enough, I guess. But it’s quite common to read hot takes that only muddy the water on important Intellectual Property issues. This is a topic that’s continually being debated in the context of new technologies. There’s a reason why people are confused about copyright.

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What’s important is that the experts understand. When we do your open heart (may you never need!) you don’t know or care whether the surgeon uses 6-0 or 7-0 suture; you just want the graft to stay open and not leak. The fine details of property law don’t concern us chickens; owning colors though? Wow! Who knew?🤪

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The issue with the article is not that it was “dumbed down” to reach a larger audience. It is that the author is wrong/uninformed on the subject matter. If i wrote an article offering simplified and uninformed medical advice you would not thank me for simplifying a complex problem.

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Maybe he's in the midst of trademarking the hue of husick. 🤣 It was a great article IMO...I found it fascinating that people think they own color.

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If you own a trademark on a color, some sense you do. At least its use in a commercial context is limited based on the rights you have staked out.

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That is annoyingly rude and wrong. This whole article is about the theory part of it, which does not research. It only needs a good brain.

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I find it ludicrous that “colors” can be protected by copyright, trademark or patents. Colors are part of nature and we merely “discover” a color we feel is unique. No one person truly “invents” a color that does not already exist.

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Oct 7, 2023·edited Oct 7, 2023

It's not ludicrous to own the right to using a color within a specific scope of business if that color is your identity and you used it first and registered it. Not at all ludicrous. Someone else copying your products and using your color in that business is stealing from you and lying to consumers. Are you Chinese?

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Let's give up all our rights to oligarchs because...the Chinese. Or maybe Russians next week. Great argument.

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You seem dim or Chinese.

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You just don't like looking silly.

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actually I'm brilliant and certainly right in this case. Your bitchy comments don't even make sense.

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Owens Corning doesn't own pink or fiberglass insulation, but it is a leading maker of fiberglass insulation and had the very bright idea to make it pink and make that symbolic of its leading brand. Insulation isn't naturally pink. It was their idea. They own the idea and in that market. If someone else made fiberglas insulation pink they would be stealing Owens Cornings brand imagery. So they have filed to "own" that color in that market only.

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Yes! That is the issue I have. You can’t patent or own a molecule found in nature, that is why pharma has to come up with man made ones so they can patent them. You can’t patent diamonds for example, they are found in nature and anyone could find one (you could patent a certain method to get them, cut style etc). Colors exist in nature and are discovered and copied. Now you could patent a method of copying them or the process used to do so, but should not be able to own exclusive rights to the color itself. Besides, color is somewhat in the eye of the beholder anyway. Yes, there are formulas for digital, print etc, but we can’t actually be sure that we are all even seeing the same color.

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Vantablack is a counterexample to what you stated. It has special utility in astronomy, as pointed out in the footnotes. That makes its use as a coating inside a telescope something that a telescope maker would profit from, and those makers should have to pay to use it, because it would not exist without the efforts of the inventor, and if it didn't exist the telescope maker wouldn't be able to make a better telescope with it.

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Apparently the owner has a patent on the process for making the substance and has a trademark on the name "Vantablack". I see a pathway to getting something functionally equivalent on your telescope without interacting with the owner commercially. As long as you don't call it Vantablack.

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I think that would be OK with patent law. Not a lawyer, but if you don't copy the product, just somehow duplicate the function, it should not be considered infringement.

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Journalism matters. This story is a good start but contains errors the writer should have caught in a fact-check but didn’t. If this were an old school newspaper, the paper would issue a correction in a subsequent issue. The writer would learn from their mistake and move on. This is why journalism still matters. Without journalistic guardrails people are left to call each other stupid and cancel the writer, their story, premise etc. There is no growth opportunity.

Fact: The legal errors I am not expert in but are outlined above. UT Austin trademark color is orange, not red. And Louboutin won the right to protect its trademark red soles but lost the case to enjoin its competitor for infringement, as I recall So that is a squishy example. Keep writing! Fact check you work!!!

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If only criticism always were this constructive!

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Agreed. The subject is a good one to explore, ‘real’ journalism would require interviewing an intellectual property expert perhaps. Still, as a designer, I say this opens a very worthwhile discussion.

Now, could a lawyer have weighed in on the fine points and nuance without denigrating the original article, I think that would be worthwhile.

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You might have mentioned that the use of Vanta black was granted to a single artist, Sir Amish Kapoor, which is really weird. And the Daguerre-Talbot comparison is weak for another reason. The daguerreotype was a technological dead end. Talbot’t invention of the negative became the mainstream of photography.

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“Two universities, the University of Texas at Austin and the University of North Carolina, have trademarks on specific shades of red and blue respectively.”

RED?!!

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A Blues musician one said to me “there’s nothing new in Blues, you think you’ve come up with something, then you hear it on a record.”

That seems to present itself as a short history of human innovation. Thus, providing deserved protection and allowing innovation is a moving target.

James Edward Gibbs invented a better sewing machine, but in order to sell it, he had to pay Singer for the license to use certain patented features.

Edison owned the screw-in light bulb, but Westinghouse had alternating current. Eventually we got to alternating current and screw-in light bulbs, but in 1893 the two were owned by distinct competitors.

A fascinating article!

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Oct 7, 2023·edited Oct 7, 2023

Interesting thoughts that you've put on the table for discussion. I once thought such topics were boring, but it soon became a fascinating subject with many interesting avenues once I started teaching the basics of intellectual property. Just to be clear about patents, of which there are three types; Utility (in the sense you referred to), Design (New, original, & ornamental design for an article of manufacture), and Plant.

I don't agree that intellectual property is bad for idea users because it will cost them more. If anyone could freely produce someone else's idea, then there would soon be no monetary incentive to produce it at all because the competitors would soon put each other out of business.

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Companies that trademark a product are paranoid about its name becoming part of the common vernacular, and therefore they essentially lose sole use of the name of that product. Think the use of Xerox instead of copying, Kleenex for tissues, Coke for any kind of soft drink, and Styrofoam for foamed polystyrene, just to give a few examples. Dow Chemical, the owner of the name “Styrofoam> has been known to reprove writers who use “Styrofoam” instead of foamed polystyrene in a research paper, and go after them if the use is continued. I don’t blame them, although I am very guilty of asking “What kind of Coke do you have? Pepsi or Coke?”

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I'm old, I know what a Whiffle bat and ball are.

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There are a ton of errors about IP law in this article. Sigh.

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Utterly fascinating read.

My intuition says that there is a difference legal protection for a color (or a set of colors) and that same set of colors applied to a tractor.

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True story, I once made a color a trademark. Defended it for a decade as a renowned trademark. Then the client company and especially the lawyers I was replaced with, well they failed. Well done. Petty jealousy and corporate games.

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> Well, copyright refers to the rights of an author over their intellectual work - be it art, a recipe

In the US at least, recipes are protected by copyright: https://www.copyright.gov/circs/circ33.pdf

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And then there is McLaren Orange in racing.

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This article is such nonsense.

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Don’t know who you are, but you write really well and that’s damned hard to do. Thank you for the article.

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It's a really shitty article.

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