Never let it be said that the arguably geeky CES (ConsumerElectronics Show) does not have widespread appeal. And what electronics rollout would be complete if there were not a little controversy. Thank you, Blackberry, and start-up tech company, Typo, for saving the day in an otherwise boring 2014 CES show. I mean, after the first demonstration of a 100+ inch curved-screen ultrahigh definition television, do I really need to see another?
At the CES show, amiss the new TiVo devices and Roku® boxes, start-up company, Typo introduced its iPhone keyboard case which provides a "real" qwerty keyboard as an add-on to iPhone. (See picture to the right.)
Blackberry has filed a lawsuit in the Northern District of California, alleging, among other things, that the Typo iPhone keyboard case infringes Blackberry's “trade dress.” Taking a page from the Apple vs. Samsung design patent infringement cases, Blackberry alleges that instead of developing its own keyboard design, Typo chose to copy BlackBerry’s innovative style and design, including the keyboard layout and the surface shaping of the keys.”
Blackberry has filed a lawsuit in the Northern District of California, alleging, among other things, that the Typo iPhone keyboard case infringes Blackberry's “trade dress.” Taking a page from the Apple vs. Samsung design patent infringement cases, Blackberry alleges that instead of developing its own keyboard design, Typo chose to copy BlackBerry’s innovative style and design, including the keyboard layout and the surface shaping of the keys.”
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| Blackberry |
In its complaint, Blackberry alleges that its keyboard has non-functional and distinctive features, present in the Typo cases to produce a likelihood of confusion between Blackberry and the Typo trade dress.
From the Blackberry Complaint the alleged infringed trade dress includes:
a keyboard product configuration with:
- a keyboard with an overall symmetrical design around the vertical center line, comprising several horizontal dividing bars above rows of sculpted keys, the last row of which is rounded on the bottom edge;
- several horizontal bars in contrasting color and finish set above the horizontal rows of keys;
- several top rows of roughly square shaped keys having little horizontal space between them;
- a bottom row of roughly rectangular shaped keys having curved bottoms edges and little horizontal space between them;
- keys with planar areas away from the vertical center line of the keyboard and sculpted curves closer to the center line;
- one larger rectangular key in the center of the bottom row having a u-shaped planar area; and
- keys having distinct lettering or graphical icons printed on the surface.
You be the judge...
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| Typo iPhone keyboard/case |
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| Blackberry |
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| Blackberry |
Does the iPhone keyboard case have non-functional, distinctive features of the Blackberry keyboard or are the Blackberry identified features functional or common to other old school tackle keyboards from smartphones of yesteryear. If the former, do the non-functional, distinctive features lead to a likelihood of confusion between the Blackberry trade dress and the Typo keyboard case's trade dress?
Mere similarity between the Blackberry keyboard and the Typo keyboard is not enough for trade dress infringement. Typo is entitled to include non-functional, non-distinctive features of the Blackberry product. And Typo can even include distinctive features of the Blackberry product to the extent that there is no likelihood of confusion between the trade dress of the Blackberry product and that the Typo product.
Take-home lesson:
Determining whether a case of trade dress infringement exists is not a simple task. Therefore, a prudent step when launching a new product is to seek legal counsel from an Intellectual Property attorney, especially if the new product is similar in function and design to that of a competitor's product.
© Stephen J. Weyer 2014
Send email feedback- sweyer@stites.com
