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Carl Kanowsky: Apple, Corn Flakes and copying

Posted: August 24, 2012 2:00 a.m.
Updated: August 24, 2012 2:00 a.m.
 

Breaking News! This just in! Following on the heels of Apple’s billion-dollar verdict against Samsung, Frosted Flakes announced today that it is suing Corn Flakes for $100 million (I guess the cereal market doesn’t compare to the mobile phone one) for infringement.

Tony the Tiger, Frosted’s spokes-animal, claimed, “Corn Flakes has flagrantly copied our look, style and design. They use a rectangular shaped cardboard box with a plastic bag holding the product inside — THE SAME AS WE DO. Then, they put a picture of a bowl of cereal with fruit on top on the cover of the box — THE SAME AS WE DO. Finally, to add insult to injury, Corn’s plastic bag inside the box pulls apart so the consumer can gain access to that inferior-tasting cereal. In fact, their bag is just as frustratingly difficult to open as ours. In tests conducted in our labs, consumers spilled just as much cereal in trying to open their darn bag as they do with Frosted’s. Have you ever heard of such unfair business practices as this?”

Corn Flakes, which lacks a spokes-animal other than the inane rooster on its box front, simply said it would have to examine the lawsuit before responding.

In similar news, Ford filed suit against Hyundai, alleging that the Korean car maker blatantly copied its popular Focus model. It seems both vehicles have four tires with windows that can be opened or closed mechanically. Hyundai also had the audacity to add brakes to its autos, mimicking Ford.

(Disclaimer: The above-reported news stories actually did not occur.)

What really did happen was that a jury in Northern California (not far from the home of plaintiff Apple) found that Samsung had infringed on a number of Apple’s patents. Patents, including things such as a rectangular shaped phone with curved edges or icons in boxes, again with curved edges. (I don’t know about you, but those features do not scream “Apple” to me.) Also highlighted were the “bounce-back” feature on the phone and pinching the screen to expand or contract the image.

Ironically, Apple had lost another patent battle just a few months earlier. In that lawsuit, set in Chicago, Apple and Motorola were engaged in a legal tug-of-war. This case is significant not just because Motorola makes a lot of cell phones. No, it’s that Motorola is owned by Google, the maker of the Android operating system that is an effective competitor to Apple.

An important distinction between the Chicago case and the one with Samsung was Apple’s approach to each case. In Chicago, Apple essentially was asking the judge to order Motorola not to sell any more of its smartphones, arguing that the phones infringed on Apple’s patents and that Motorola could not make its phones without continuing to infringe on Apple’s intellectual property (i.e., its patents). Motorola contended that Apple couldn’t prove any damages, so even if there was infringement, no harm, no foul.

The judge agreed with Motorola. Judge Richard Posner ruled, “To suggest that (Apple) has suffered loss of market share, brand recognition or customer goodwill as a result of Motorola’s alleged infringement of the patent claims still in play in this case is wild conjecture.”

I may be wrong but it seems that perhaps Apple learned its lesson and re-focused its Northern California case on specific problems with Samsung’s phones rather than the wholesale Chicago approach of “Off with all of their heads.”

So, maybe Tony the Tiger’s approach against Corn Flakes should be to try and stop the way they package the cereal, not trying to stop them from selling cereal at all.

Carl Kanowsky of Kanowsky & Associates is an attorney in the Santa Clarita Valley. He may

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