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Tabberone is pronounced tab ber won |
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pediped Footwear Hall Of Shame Member Added October 27, 2010 |
Last updated - October 27, 2010
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Corporate lawyers keep inventing lies with which to earn their twenty pieces of silver. Like the Mission Impossible teams, they find a way to
overcome the opposition even if they have to invent a phony legal argument. Corporate lawyers know that small companies lack the resources
to effectively defend themselves against predatory legal hacks. Especially when it comes to alleged trademark infringement because the courts rarely award
legal fees in trademark cases. Cease and desist letters are often nothing more than over-blown claims and posturing. And that is the case here.
One of the emerging new offenses going around is to make claims of trade dress infringement . Like the various claims of trademark infringement, trade dress is one of those smoke and mirrors arguments that are designed to put fear into the hearts and minds of the recipient of the warning letter. pediped Footwear has sunk into the murky depths of foul play by having its attorney, one Mark S. Katz, of Katz & Associates, send out threatening letters to companies that are not infringing upon their "trade dress". As a sleazy corporate lawyer, which we find redundant, Mark S. Katz makes over-blown claims of trade dress infringement that even you, the reader of this, can readily see when you look at the competing products. And that is the key phrase here: competing products. The real purpose of the threatening letter is to stifle competition; not to remedy a wrong. pediped Footwear is fabricating an infringement to drive competitors out of the marketplace. |
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Trade dress is something by which the public associates a product with a manufacturer. The distinctive shape of the Coca-Cola bottle qualifies as trade
dress and it has acquired secondary meaning as such. DeWalt power tools are yellow and that color on power tools is consider trade dress as
the public associates the yellow color with the company. Levi Strauss won a trade dress case based upon the stitching on the back pockets of its
blue jeans. But notice the one thing these examples all have: the trade dress is not functional but rather decorative and distinctive.
pediped Footwear wants to claim that the shape of its shoes, the designs on the shoes and the stitching on the shoes constitute trade dress. The Supreme Court stated: |
Trade dress protection must subsist with the recognition that in many instances there is no prohibition against copying goods and products. In general, unless an intellectual property right such as a patent or copyright protects an item, it will be subject to copying. As the Court has explained, copying is not always discouraged or disfavored by the laws which preserve our competitive economy. Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141, 160 (1989). |
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So what exactly is protected in the shape of the pediped Footwear shoes? There is no patent on the shape of the shoe and one cannot copyright
useful items like clothing. Therefore the shape is not protected by statute. Has the shape of the shoes, like the Coca-Cola bottle, acquired secondary meaning?
Not really because if you look at the shoes, there is no underlying and consistent theme shape-wise for the shoes. They are all somewhat different.
But secondary meaning is not always required for something to be considered trade dress. But the shape of shoes is functional. There are just a few
ways to shape shoes in order for them to be practical and while pediped Footwear claims the shape is a result of their imagination and research,
the shape was not given a patent so it remains functional. Therefore the shape is not trade dress.
So what exactly is protected in the designs of the pediped Footwear shoes? Unless the shoe designs are copyrighted, and by that we mean that the designs are registered with the copyright office, pediped Footwear cannot file a federal court action for copyright infringement. But Mark S. Katz, of Katz & Associates, is not claiming copyright infringement. He is claiming trade dress. Since the coloring and patterns of the various shoes are so different, they cannot possibly qualify as trade dress. So what exactly is protected in the stitching of the pediped Footwear shoes? Unlike the stitching on the back pockets of the Levi blue jeans, which was decorative, stitching on shoes is functional - it holds the shoe together. Functional aspects of a product cannot be considered trade dress. The Supreme Court stated: |
The Lanham Act, furthermore, does not protect trade dress in a functional design simply [page 35] because an investment has been made to encourage the public to associate a particular functional feature with a single manufacturer or seller. |
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pediped Footwear's web site is https://pedipedbabyshoes.com/home/home.aspx. However, we suggest you be careful about going there
as we received a threat warning about the web site.
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| Now, we are going to present comparison pictures of the two lines of shoes. The shoes depicted below came from the two web sites. pediped Footwear has quite a few more shoes that the victim, Jemos. The pediped Footwear shoes below come from their "Original" series. |
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pediped Footwear "Originals"
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pediped Footwear "Originals"
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Jemos shoes
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pediped Footwear "Originals"
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pediped Footwear "Originals"
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Jemos shoes
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pediped Footwear "Originals"
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pediped Footwear "Originals"
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Jemos shoes
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pediped Footwear "Originals"
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pediped Footwear "Originals"
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Jemos shoes
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pediped Footwear "Originals"
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pediped Footwear "Originals"
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Jemos shoes
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pediped Footwear "Originals"
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pediped Footwear "Originals"
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| Now, would someone please tell us what they see? We do not see any design copying. As for shape, shoes are shoes. There is nothing remarkable about the design and shape of the pediped Footwear shoe. If there were, they would have a patent. As for the "stitching", where it copied? Stitching on a shoe is functional but even if it were not, there is no trade dress evident so there is no infringement. Mark S. Katz, of Katz & Associates, you are a sorry excuse for a corporate lawyer. Not only do we think you are lying but we also think you know you are lying and that you do not care. The bottom line is that all you want is that check coming in from pediped Footwear. Billable hours, that is all. The rights of others be damned. |
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Rebuttals
In an effort to provide a balanced view, we make the following offer to anyone who feels they have been wrongly accused on this web site. If you, or your company, have been referenced on these pages, and you would like the chance to post a rebuttal, we will post your rebuttal (provided it is in good taste) so others can read it. The rebuttal must be submitted in a format that can easily be converted into HTML. We reserve the right to alter the rebuttal to make it more readable. However, we will not alter the content (unless there is offensive material to be removed). We also reserve the right to comment on any rebuttal received. Emails protesting the content of this web site may be treated as rebuttals by us at our discretion. |
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