It has nothing to do with my view. It is a fundamental concept of trademark law that you can't associate your products with another trademark owner's brand without their permission. Dilution is much broader than Company X selling computers using the trademark of Company Y, who also happens to sell computers. Apple could be selling dog food, but if Apple's mark is famous, which it unquestionably is, it prohibits the use of Apple's mark in association with just about any other product.

Perhaps the better example is all of the product placement in movies. Nobody would believe that Coca-Cola or BMW or TagHeuer were the source of the latest action movie, but that doesn't give the movie studio the right to display the hero driving a BMW without BMW's permission. By placing a BMW in the movie, there is a belief that BMW has consented to its association with the film. By using the Apple OS on a Psystar, there is a belief that Apple has consented to that use.

The Microsoft and Linux business model allow association of the OS with any type of hardware from any source (Dell, HP, Fly-By-Night Computers, whatever). Apple has not, does not, and is under no obligation to adhere to that model, no matter how many people want to run MacOS on a PC and no matter how many companies like Psystars decide they are going to put the MacOS on their machines regardless of how Apple feels about it.

Your Ford example is not what Psystar is doing though. They are essentially buying a Toyota slapping Ford badges on it and calling it a Ford. If you did that once or twice on eBay Motors, Ford wouldn't bat an eye... but if you established a store front to sell Toyotas with Ford badges on them, Ford would throw a fit (and frankly so would Toyota). That is trademark dilution - implying a false connection to a famous brand. You think you are getting a Ford, but you are really getting a Toyota. (I purposely did not use a Yugo in this example because the quality of your goods really doesn't matter when it comes to dilution of a famous brand. You could slap Ford badges on a Bentley and Ford would still be pissed (as would obviously, Bentley)).

Your notion that all Psystar customers are sophisticated consumers sounds correct initially. It may be that many of Psystar first customers are "Slashdot" types - but eventually, Joe the Plumber is going to hear that he can get an APPLE computer for 400 bucks. Not only is Apple then losing a sale on hardware, but when his "Psystar Apple" computer stops working, he is going to call Apple for the fix. That, among many things, is what Apple is trying to prevent.

There are often abuses of the Trademark Act - Starbucks, in my opinion, is absolutely awful and ruthless in "protecting" its brand, often bankrupting small coffee roasters, or even beer brewers to protect the Starbucks name. Apple has had its bad moments too... I just don't think this is one of them, and these wacky arguments Psystar lawyers are coming up with sound like the mental exercises of a law school exam.

It doesn't matter whether people are likely to think that Psystar is Apple. You have to be authorized by a trademark owner to use its trademarks - the whole point of dilution is that Psystar is NOT Apple, but is perceived to be connected to Apple in some lawful way by the use of Apple's trademarks. The public perception is likely to be that Apple has authorized Psystar to install Apple's OS on non-Apple branded hardware. That is as classic as dilution gets and is far more compelling (and grounded in case law) than this nonsense "monopoly over the Apple OS" claim Psystar tried to argue.

Apple filed separate counts for trademark infringement and trademark dilution in their original complaint (See Apple's 5th, 6th, 7th and 8th claims of relief in the original complaint), so there are in an excellent position to claim damages for brand dilution. Apple is going to win on the trademark claims alone... and if the only thing Psystar can come up with is that Apple didn't file a $45 form with the Copyright Office, they are going to win the copyright claims too. IAAL and frankly, these arguments by Psystar's attorneys are just plain embarrassing.

You just wrote your cross examination of the cop who thinks this is good police work.

Ray,

I was dying to have one of these cases cross my desk, though frankly, I was a solo and it probably would have killed me to take it. I can't stand injustice like what the RIAA is doing... guess that's why I became a Public Defender. :)

Regardless, like many Slashdot readers, I've followed your work over the years, and you have certainly brought a number of smiles to my face from the documents you have posted on your website.

Regards,

Anthony

Sure, Duke is bold now that NewYorkCountryLawyer and other lawyers stood their ground in a proverbial Battle of Thermopylae defending a bunch of homemakers and retirees against the RIAA army! While it certainly helps now, we needed the universities' collective might in 2005, not 2008, and perhaps a lot of people wouldn't have been put needlessly through the wringer!