Re: reverse engineering a color?

From: <ArborLaw[_at_]aol.com>
Date: Tue, 22 Oct 1996 12:47:59 -0400

I'm confused about just what type of property right it is that we're worried about infringing or potentially infringing in this thread.

It seems to me that what the color "reverse engineering" tool is doing, if anything, is reverse engineering a process, formula or method which achieves a desired end result, ie, a particular color, to make it possible to be produced by the same or by a different process, formula or method. There I believe the "res" might be within the patent or trade secret regime, but is expressly not copyrightable subject matter under s102 of the US act.

If it's a single color itself, I don't think a single color is copyrightable under the merger doctrine. I don't think it's necessary to get into the functionality doctrine under copyright to argue that a single color is not protectable, and I don't find the Williams case as cited saying that "a single color is not protectable because of functionality," I find it saying that the objects and colors in the instant case were functional as applied within the graphic scene, ie, you need more elements here also being infringed. A particular- -of-yellow cube will not infringe a particular-shade-of-yellow cylinder, copyright-wise (but there might be a trademark claim...).

One could make an allusion to the language in software cases that by using the "black box" reverse engineering method the same "functionality" is thereby achieved: the result is a single color (instead of a similarly functioning software program). I believe this is a different, engineering sense of "functionality" and not the legal "functionality" reserved from protection by the traditional bars that are found in US federal trademark and copyright statutes and case law.

A single color has been found protectable and not functional under US law in the recent Qualitex decision, *as applied* to ironing board covers. In trademark law the "res" is actually a relation rather than just an identifier standing alone: "X as applied to Y," not just "X". (This is not, however true of domain names because they are unique and not relational, and that's why I argue they are a different type of intellectual property.)

So I think this machine might be a tool to make trademark infringement possible (ie, I stole your color formula AND put it on the same kind of widget that you use it on) but it is no more inherently naughty in that respect than a Ticonderoga #2.

Carol Shepherd
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==--====-==-=-=-==--=--====--=-=-=-====---===-=-=-====---===---= Received on Tue Oct 22 1996 - 16:48:27 GMT