Your analysis is correct. Although I completely agree with your post in substance, there are two minor corrections I would contribute:
First, colors cannot be "trademarked" in the conventional meaning of the word. UPS does not own a trademark over the color brown, nor does John Deere own the color green. UPS cannot prevent trucks, or even delivery trucks from being painted brown, nor can John Deere stop farm equipment from being painted green, so long as a reasonable person would not be confused by the origin of the product. What these companies do have, however, are trade dress restrictions which are also governed by the Lanham Act. Trade dress describes your product's overall appearance and packaging of a product or service. At the most liberal outset and expansive of protections, Two Pesos states that trade dress can be distinctive [and thus deserving of protection] without having to show that the trade dress has acquired secondary meaning [has itself become distinctive for other market reasons]. This is the case law as it stands today, though a huge number of critics have taken huge exceptions to this ruling. Two Pesos was reigned in by Wal-Mart v. Samara which stated that a products design is only protectable by showing of secondary meaning. In that sense, Tide cannot claim trade dress infringement by orange-bottled fabric detergent without showing that the orange bottle has acquired secondary market meaning. UPS's brown trucks and John Deere's green tractors will likely have secondary meaning, but the question does not stop at trade dress. Instead, trade dress goes to a likelihood of confusion (so does trademark, but trademark prevents literal infringement in a same category where trade dress may not). For example, If I sell you a green tractor with yellow accents, you might think it came from John Deere. If I sold you the same tractor with purple accents instead of yellow, you likely would not, and I would not have infringed on John Deere's trade dress.
The distinction is best summarized (although I still disagree with the ruling) by Louboutin v. Yves St. Laurent, where a federal appellate court ruled that monochromatic red shoes cannot be 'trademarked' but that red soles on a non-red shoe may be [again dependent upon finding of secondary meaning].
Second, there is an inherent difference between trademarks like "Apple" and "Google," "Photoshop," and that of "Memory." "Apple" and "Google" would fall under the "arbitrary" or "fanciful" categories (respectively) since "Google" is a made up word with no other meaning, and "Apple" is the use of a generic word in a completely unrelated context (computers). Continuing in order of protection, "Photoshop" would be "suggestive," since it is a unique combination of words that suggests the nature of the product [i.e. a digital workshop in which you can retouch photos]. Blu-Ray is a good example.
Memory, on the other hand, is a descriptive mark, which is the least protected and only one step above an unprotectable generic word. "Memory" is directly related to the meaning of the board game in which you must "remember" the location of the cards to match them. The only way that descriptive marks gain protection is if they have developed some secondary meaning in the marketplace. As such, Ravensburger has a much higher standard to prove that they are considered to be the source of the "Memory" game than any other "memory" game on the market. Their continued ownership of the trademark seems to evidence that they have done so.
But you are absolutely right in that Ravensburger has the trademark, and any maker of a "Memory" game is infringing on that trademark. However, the makers of these apps may file an action against Ravenburger to invalidate their trademark and preserve their app's name. So this isn't big, evil Apple beating up on the little guys. These guys are infringing, and they have the burden of proving that Ravenburger is not deserving of the "MEMORY" trademark. They just might have a better chance of invalidating the trademark than, say, Zynga, who instead must call their Scrabble-like game "Words with Friends" instead of "Scrabble" because "Scrabble" is itself a fanciful mark and thus not subject to invalidation without a showing of abandonment.
I figured Cyber Men would be a better name for an extended army of...
According to the testimony of the lower court, yes, he did spray it with the explicit intent to kill non Roundup-Ready crops and grow only Roundup-Ready crops. Not that this is necessarily illegal. But beyond testimony, spraying Roundup on non-RR crops will absolutely kill them; he'd have no other reason to use glyphosate than to grow RR crops.
Also, unrelated to this response, why exactly was I modded "Troll" for my (admittedly flawed) analogy above? I'm not defaming or flamebaiting or attempting to be derisive. I'm merely recapitulating the facts of the case as it's been litigated thus far. Although I have now unlocked the "+5 insightful
Yes, since its inception patent infringement has always been applicable to users and not simply producers. That's nothing new to patents; there is no "fair use" claim regarding non-profit or end-user use. Patents can be infringed for making, using, offering for sale, or selling any patented invention or a component or components thereof. Patents are absolutely the most draconian of IP protection. This is supposed to be offset by the "difficulty" and cost of obtaining a patent and the "limited" term of the grant (20 years is a heck of a lot better than life +70 or 90/120 years in case of copyright). Patent experts are seriously questioning whether the scope of patents has gone too far, and now you see the Supreme Court and even the Federal Circuit Court trying to reign in the broad scope that has been allowed.
It should be noted, however, that the only damages recoverable from patent infringement is lost profits, so no patent holder in their right mind is going to go after an end-user accidentally infringing for personal use. Unfortunately, as patent trolls have so readily demonstrated, many patent holders are not, in fact, in their right mind.
This is the very basis (seed drift, AFAIK) on which Monsanto has seized lands so far. Every case of Monsanto land-grabbing is a citation.
No, every Monsanto case litigated thus far regarding Roundup-Ready crops has involved farmers gathering seeds from their own contracted plantings (or in Bowman's case, a commodity source) and replanting them with the intention of growing Roundup-Ready crops. No case at all has ever involved seed drift, which means that the seeds have fallen across someone's property line so that a non-RR farmer winds up accidentally growing RR soybeans. Same goes for cross-contamination and cross-pollination. Yes, a number of farmers have claimed seed drift as a defense. In every case, the jury determined that the farmer was lying, usually evidenced by the large quantities of Roundup they were purchasing. "No, I didn't plant those GMOs; I didn't even know they were there. I just so happened to buy a huge vat of Roundup to spray on them, even though I didn't know they could tolerate glyphosate." That argument didn't work. Monsanto, for all of their big-corporate-y evil, has never prosecuted a case on the grounds that a farmer has raised RR crops from seed drift or cross-pollination. Period. Every case on record goes against your vague generalizations. So either you are misinformed or you are trolling. There are innumerable reasons to despise Monsanto. I would suggest adopting one that is based on fact rather than hyperbolic party-line rhetoric.
Granted, I think many of us are of the opinion that Monsanto doesn''t need or deserve legal help, but there is a need for patents/trademarks/copyrights, even if on a significantlymore limited scope than we see them today.
Incorrect. Monsanto seed did NOT drift onto Bowman's land without his knowledge or consent. Thus far, no such case has been litigated where seed drift or cross-pollination has occurred. Obviously that is a very big question that will come out of this ruling, should the court find for Monsanto, as it will arguably put the onus of burden on farmers to test for and destroy infringing crops caused by cross pollination. That issue, however, is not in debate here.
Bowman realized that a staggering percentage of soybean seeds on the commodity market were Roundup-Ready GM seeds. Normally a farmer has to sign a contract that he will not replant any additional seeds and will buy future generations of seeds from Monsanto. Replanting seeds for these farmers has not been considered a patent infringement but instead a contract violation. The patent infringement idea was unprecedented until this case. Bowman, who had not signed a Monsanto contract, simply decided to buy contract-free seeds on the commodity market, as Monsanto-contracted growers can sell the seeds they are not allowed to replant for general purposes such as food production. Bowman had the novel idea to take these seeds and plant them, spray the seeds with Roundup (thus killing off all the non-Roundup-Ready seeds), and have contract-free Roundup-ready seeds that he could replant at will. Monsanto, which monitors the purchase of Roundup to Roundup-ready seeds under contract, determined Bowman had purchased enough Roundup to be running an un-contracted operation. Unable to ping him on the contract issue, they requested him to stop. He refused, and they sued under the patent infringement theory.
The question that will be debated here is whether or not subsequent generations of Roundup-Ready crops, by the act of growing them, independently constitute patent infringement. Normally for infringement to occur there has to be some performative action. Monsanto is arguing (and the lower court agreed) that the performative act of planting the seeds in the first place is sufficient to transfer infringement to subsequent generations, and therefore the plants can essentially infringe upon each new growth without Bowman's performative action on subsequent growings.
It may seem pretty dumb, but it has the potential to majorly impact the food industry. If the court finds for Monsanto, the "auto-infringing crop" theory would make accidental infringers of any farmer who encountered cross-pollination or seed drift. Although no such cross-pollination has been successfully argued -- in all cases where farmers have brought this defense, it has been very well proven that they were lying through their teeth and had planted Monsanto crops in violation of their contract. Conversely, if the court finds for Bowman, this would in effect nullify Monsanto's patent protection on their seeds, as no farmer would buy from the developer, bound to a contract, where they could just go out and buy commodity seed at a fraction of the cost.
I've researched GMO patent intensively, written articles, and have followed the case for a while now. I think the one constant among GMO patent cases is that both sides -- Monsanto and farmers alike -- have done nothing but provide a tremendous amount of misinformation about the other side. No party line can be trusted. Monsanto argues that they're just trying to make a living and don't gouge anyone, being a humble food producer. Farmers argue that they're being put upon by the big corporate food monopoly and haven't done anything inappropriate other than try to grow organic foods. Both sides are lying and are trying to wage war to maximize their profits. Being as rabidly anti-DRM as we are, I suppose Slashdot readers will support the farmers. Either way, this issue is pretty big for determining whether the judiciary is embracing the pendulum swinging back to more restrictive patents or is continuing the trend of expansive patent protections.
Also worth noting, Monsanto's patents on Roundup-Ready soybeans are set to expire in the next few years, IIRC. The question is going to be entirely academic and legal and will likely have no effect on Roundup-ready crops at all after the patent expires.
Truly simple systems... require infinite testing. -- Norman Augustine