How anti-competitive lawsuits by incumbents are killing early stage startups(blog.garrytan.com)
blog.garrytan.com
How anti-competitive lawsuits by incumbents are killing early stage startups
http://blog.garrytan.com/infanticide-how-anti-competitive-lawsuits-by
11 comments
Edited: The suit claims violation of trademark and trade dress infringement, improper use of IP (apparently the UI) and ironically, unfair competition. While there are similarities between some pages of the design, I find it difficult to believe Fab can claim all right to the use of Helvetica, or industry-standard design elements like checkout buttons.
Garry - like most here, I really respect your opinion but you should consider whether you're letting your relationship with the team bias your view.
I was with you until I saw the screenshots in the TC post. The first one with the same layout right down to the seal of authenticity below it - this is way more than using common industry recognized design elements (like Fab using Pinterest's grid layout for example). This is close to Samwer brothers territory here.
They're also not doing themselves any favors with their response to Fab. Raising a lot of money and having scale doesn't automatically make Fab a villain. The claim on using open source frameworks is just bizarre/irrelevant.
Most of all, this doesn't pass the sniff test for me. At a quick glance, I could have easily mistaken this site for something built out of Fab. If I were Fab, I feel I would be angry and want them to stop copying my work directly.
I was with you until I saw the screenshots in the TC post. The first one with the same layout right down to the seal of authenticity below it - this is way more than using common industry recognized design elements (like Fab using Pinterest's grid layout for example). This is close to Samwer brothers territory here.
They're also not doing themselves any favors with their response to Fab. Raising a lot of money and having scale doesn't automatically make Fab a villain. The claim on using open source frameworks is just bizarre/irrelevant.
Most of all, this doesn't pass the sniff test for me. At a quick glance, I could have easily mistaken this site for something built out of Fab. If I were Fab, I feel I would be angry and want them to stop copying my work directly.
"At a quick glance, I could have easily mistaken this site for something built out of Fab. If I were Fab, I feel I would be angry and want them to stop copying my work directly." -- If someone built competing search engine with a text box & search button, would you be confusing it with Google ?. Shouldn't people knowledge enough to differentiate & recognize brands by quality of service offered by them?. There are many clones of Instagram, Groupon, Airbnb. Systrom of Instagram told techcrunch,
"There might be 10 clones here, [but] there are also 20 clones from the United States right? You know, being copied is something that I think that every successful company will go through. Our biggest defensible asset really is our community, and I think that’s the thing that you’re not going to find on any of these replicas." (http://techcrunch.com/2011/11/06/instagrams-kevin-systrom-on...)
and Instagram didn't sue their clones !!.
"There might be 10 clones here, [but] there are also 20 clones from the United States right? You know, being copied is something that I think that every successful company will go through. Our biggest defensible asset really is our community, and I think that’s the thing that you’re not going to find on any of these replicas." (http://techcrunch.com/2011/11/06/instagrams-kevin-systrom-on...)
and Instagram didn't sue their clones !!.
The only thing I got out of this rather lightweight article was "Business models shouldn't be copyrightable or patentable -- yet today's lawsuit seems to indicate that some entrepreneurs believe they are"
This insinuates Fab.com is suing because Touch of Modern has a similar business model.
However, I now sense this is deflecting the real truth, which is that more than just a business model and the use of Helvetica is being copied.
This insinuates Fab.com is suing because Touch of Modern has a similar business model.
However, I now sense this is deflecting the real truth, which is that more than just a business model and the use of Helvetica is being copied.
It's more direct than that, screen shots from the suit: http://techcrunch.com/2012/08/15/fab-lawsuit-touch-of-modern... (iPad app popup warning)
Wow.
If I were Pad, I would at the very least get legal advice the minute I saw that.
It may be without the bounds of what is legal, but it is certainly unethical, and it pretty much voids anything the OP wrote about this. This isn't a brave little start-up, this is a bunch of cheap-ass copycats with zero originality.
If I were Pad, I would at the very least get legal advice the minute I saw that.
It may be without the bounds of what is legal, but it is certainly unethical, and it pretty much voids anything the OP wrote about this. This isn't a brave little start-up, this is a bunch of cheap-ass copycats with zero originality.
I'm really curious that people are having this reaction. I looked at the side-by-side pics and saw two fairly generic e-commerce layouts with a few small similarities, but just as many differences. My immediate reaction was, "Huh? There's no case here."
A lot of HN commenters are having the opposite reaction, not just you, and so I suppose you all might be onto something. But I still don't see it myself.
A lot of HN commenters are having the opposite reaction, not just you, and so I suppose you all might be onto something. But I still don't see it myself.
I have the same reaction you (and Garry Tan) do. Having a members-only upscale e-commerce wasn't invented by Fab, Gilt Groupe was doing it four years before Fab was founded. There aren't that many variations on what a members-only-bouncer page can look like.
Aside from the choice of layout of the product page, which itself is generic, I don't see anything in common. Having the time remaining in the header bar has been commonplace on flash sale sites (Groupon and clones) since before Fab was ever founded.
E-commerce layouts have been studied in depth, it wouldn't surprise me if the layout choices (like repeating the add to cart button at the top and bottom) by Fab were not arbitrary but based on known best-practices.
Aside from the choice of layout of the product page, which itself is generic, I don't see anything in common. Having the time remaining in the header bar has been commonplace on flash sale sites (Groupon and clones) since before Fab was ever founded.
E-commerce layouts have been studied in depth, it wouldn't surprise me if the layout choices (like repeating the add to cart button at the top and bottom) by Fab were not arbitrary but based on known best-practices.
To win on trade dress, Fab.com is going to have to prove that the design is distinctive, and that the average consumer associates the design with Fab.com
Their design is generic enough that I think it will be nearly impossible to prove distinctiveness. I'm sure that A Touch of Modern can find plenty of very similar sites to prove the design isn't distinctive.
Additionally the design elements can't serve a utilitarian purpose--the clock icons next to the timer, and the price tags next to the price, clearly serve a utilitarian purpose. What else would you use to highlight a timer or a price?
Their design is generic enough that I think it will be nearly impossible to prove distinctiveness. I'm sure that A Touch of Modern can find plenty of very similar sites to prove the design isn't distinctive.
Additionally the design elements can't serve a utilitarian purpose--the clock icons next to the timer, and the price tags next to the price, clearly serve a utilitarian purpose. What else would you use to highlight a timer or a price?
> What else would you use to highlight a timer or a price?
A different color font, a larger font, a colorful highlight, arrows, bullets, a speech balloon, quotation marks, an hourglass, a dollar sign, a picture of money... there are many other designs available. That doesn't mean that it's an automatic winner for Fab, but there are many other ways that ToM could have designed the site.
> the design elements can't serve a utilitarian purpose
When courts use "functional purpose" in the trade dress context, they usually mean things like product features that make the product work. For example, courts have ruled that things like the physical design of a conveyor belt can't be protected as trade dress (the "Value Engineering" case). I'm not sure that design elements that highlight certain information are "functional" in the way that a conveyor belt design is "functional."
That said, it might not matter: in the "Clicks Billiards" case (2001), the Ninth Circuit held that a _combination_ of functional elements can be protected as trade dress: there, the combination of 37 elements of a billiards hall design were held to be eligible for protection even though some were undeniably functional (the presence of acoustic tiling on parts of the walls and a certain style of "drink rails") and some were pretty generic in isolation (one was "dark mahogany wood finishes"). The court ruled that the combination could still be protected. It looks like Fab is trying to make a similar argument here that the combination adds up to being too similar. (This lawsuit was filed in San Francisco, which is covered by the Ninth Circuit.)
A different color font, a larger font, a colorful highlight, arrows, bullets, a speech balloon, quotation marks, an hourglass, a dollar sign, a picture of money... there are many other designs available. That doesn't mean that it's an automatic winner for Fab, but there are many other ways that ToM could have designed the site.
> the design elements can't serve a utilitarian purpose
When courts use "functional purpose" in the trade dress context, they usually mean things like product features that make the product work. For example, courts have ruled that things like the physical design of a conveyor belt can't be protected as trade dress (the "Value Engineering" case). I'm not sure that design elements that highlight certain information are "functional" in the way that a conveyor belt design is "functional."
That said, it might not matter: in the "Clicks Billiards" case (2001), the Ninth Circuit held that a _combination_ of functional elements can be protected as trade dress: there, the combination of 37 elements of a billiards hall design were held to be eligible for protection even though some were undeniably functional (the presence of acoustic tiling on parts of the walls and a certain style of "drink rails") and some were pretty generic in isolation (one was "dark mahogany wood finishes"). The court ruled that the combination could still be protected. It looks like Fab is trying to make a similar argument here that the combination adds up to being too similar. (This lawsuit was filed in San Francisco, which is covered by the Ninth Circuit.)
I guess the true reasoning behind the lawsuit is only known by Fab, but I don't think they're making baseless claims. Whether it's "fair" for them to sue for something like this, I don't know, but this page is absolutely copied from Fab.com: http://tctechcrunch2011.files.wordpress.com/2012/08/tomofab2...
Also their statement doesn't address the actual claims, they spend 3 paragraphs talking about how they're better than Fab and how Fab is bigger than them, one paragraph is mentions the accusations "All of our design elements utilize open source frameworks and are developed in-house." but doesn't address the issue either...
Also their statement doesn't address the actual claims, they spend 3 paragraphs talking about how they're better than Fab and how Fab is bigger than them, one paragraph is mentions the accusations "All of our design elements utilize open source frameworks and are developed in-house." but doesn't address the issue either...
While I do think there was almost certainly some loose copying that happened (from the little I know of such, not enough to cause trade-dress problems, however), your link is a bad example. That could just as well be The Standard E-Commerce Theme. About 90% of e-commerce shops have the exact same elements on every page.
It's not the layout or the elements positioning, it's the style. You can clearly see that they've seen style choices fab have made and copied them, for example here is 4 things: http://i.imgur.com/8ONGa.png
I don't think it's plausible for ToM to have "coincidentally" made identical style choices to Fab, they're just too alike to not be intentional copying.
I don't think it's plausible for ToM to have "coincidentally" made identical style choices to Fab, they're just too alike to not be intentional copying.
I'm not a lawyer, or a designer, but those examples seem incredibly weak.
A generic tag icon next to the item price, in a different color? A "sale ending" notice with different color, location, and font?
A generic tag icon next to the item price, in a different color? A "sale ending" notice with different color, location, and font?
Fab.com is not some amazing technology, it's not going to change the world with 1s and 0s, Fab is a brand and the way their website is presented is important to their brand. The style of something is the sum of all its parts, it's the way something is designed and presented. Sure, on the face of it having a clock next to the time to go is meaningless and sure having a tag next to the price is meaningless, but when you have a website made up of lots of things like that it becomes their "style".
To me it is absolutely certain that ToM made a concious effort to copy the style of Fab, through the composition and presentation of individual elements and the layout of the site.
Branding is very important and can very easily confuse consumers, maybe Fab are being overzealous and should have just asked ToM to stop copying their branding, but to claim that because lots of websites have clock graphics next to their timers that this isn't a copy is silly.
To me it is absolutely certain that ToM made a concious effort to copy the style of Fab, through the composition and presentation of individual elements and the layout of the site.
Branding is very important and can very easily confuse consumers, maybe Fab are being overzealous and should have just asked ToM to stop copying their branding, but to claim that because lots of websites have clock graphics next to their timers that this isn't a copy is silly.
For trade dress infringement the design elements can't serve a utilitarian purpose. So clocks and price tags used as icons to convey meaning don't count.
I'm not arguing the legitimacy of the lawsuit, I'm arguing that Garry and ToM are being disingenuous claiming that fab.com are just trying to shut down their competition, when it's quite clear to me (and others here) that the style of ToM is copied from Fab.com.
Whether or not they will win in court is irrelevant, what matters is that what Fab.com is claiming (ToM copied them) is (in my opinion) an accurate claim.
Whether or not they will win in court is irrelevant, what matters is that what Fab.com is claiming (ToM copied them) is (in my opinion) an accurate claim.
>claiming that fab.com are just trying to shut down their competition
Their lawyers know that they most likely aren't going to win this--they're just trying to force them to pay legal costs they can't afford.
In essence they are pursing a fairly frivolous lawsuit for the sole purpose of removing competition.
Their lawyers know that they most likely aren't going to win this--they're just trying to force them to pay legal costs they can't afford.
In essence they are pursing a fairly frivolous lawsuit for the sole purpose of removing competition.
There are a lot of different ways to do things. Any one of these alone would be meaningless. All of them together certainly suggests to me a probability that the author of the second page was substantially inspired by the first.
TIL substantially inspired is grounds for a lawsuit.
37signals should start suing all the SaaS websites that were inspired by Basecamp.
37signals should start suing all the SaaS websites that were inspired by Basecamp.
Poe's law for intellectual property law: I couldn't tell if this was sarcasm, or there really is a "substantially inspired" standard for trade dress.
A quick google shows that in fact this is sarcastic.
A quick google shows that in fact this is sarcastic.
I meant substantially inspired as an understatement.
It's called a trend. If you look hard enough I guarantee you'll find a website that is older than fab.com that looks very similar.
To win a suit for trade dress infringement it's not enough to prove the designs share similarity. The plaintiff's design must be truly distinctive and closely associated with the site.
I don't see anything distinctive about Fab.com's site, it looks exactly like dozens of other e-commerce sites. Furthermore no one is going to look at a product page with a picture on the left some, a white background and grey helvectica and think--Fab.com.
They're not going to win this one.
To win a suit for trade dress infringement it's not enough to prove the designs share similarity. The plaintiff's design must be truly distinctive and closely associated with the site.
I don't see anything distinctive about Fab.com's site, it looks exactly like dozens of other e-commerce sites. Furthermore no one is going to look at a product page with a picture on the left some, a white background and grey helvectica and think--Fab.com.
They're not going to win this one.
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Exact same elements? Are 90% of these elements all arranged in the same way as the example shown? Absolutely not.
I read the article and felt empathy for a Touch of Modern, but then I see that example and think the article is dishonest.
I read the article and felt empathy for a Touch of Modern, but then I see that example and think the article is dishonest.
It seems to me that the main reason those two pages look so similar is that in the TouchOfModern page the product displayed somehow happens to be the exact same shade of red used in the Fab.com interface.
I'm not a lawyer and cannot comment on the validity of the lawsuit nor the law concerning this; but as a designer I can say that neither site has an original design in any way. They both look like standard modern retail sites to me. Design iterations on retail sites are often driven by the consumers who purchase from them, therefore Fab should sue people who purchase items from retail sites.
Ironically Southwest went on to use lobbying to shut down Texas high speed rail projects.
You either die a hero, or....
You either die a hero, or....
I'm dissapointed that YC isn't more focused on teaching strategy - how to attack an entrenched competitor by being different in a meaningful way. Southwest is one of the great strategy stories of all time. Touch of Modern may be hard working decent folks, but they have no apparent strategy.
I understand the intent. You're hoping that New York Times picks this up and writes a trend piece. Yeah, I know, all is fair in love and war.
I just hate to see YC turn into a more self-righteous version of the Samwer brothers. At least the Samwers have the good taste to keep their public pronouncements to a minimum. I've never heard the Samwers claim to be victimized.
I understand the intent. You're hoping that New York Times picks this up and writes a trend piece. Yeah, I know, all is fair in love and war.
I just hate to see YC turn into a more self-righteous version of the Samwer brothers. At least the Samwers have the good taste to keep their public pronouncements to a minimum. I've never heard the Samwers claim to be victimized.
I don't know about the lawsuit, but the landing pages for touchofmodern.com and fab.com are practically identical.
http://fab.com/
https://www.touchofmodern.com/
http://fab.com/
https://www.touchofmodern.com/
Gilt has changed their homepage, but Im pretty sure they were both "inspired" by this page:
https://img.skitch.com/20120816-dhjgxct5wqjq26413w9j654g8q.p...
https://img.skitch.com/20120816-dhjgxct5wqjq26413w9j654g8q.p...
as is the landing page for any http://launchrock.com/ site and a million other web sites on the internet. If that's the criteria for suing someone (which it seems to be), we seriously need to rethink the entire system. Throwing out all patent law sounds like a good start to me.
although patent law doesn't seem to be the culprit here. Either way, it's shameful that Fab can sue for look/feel.
> Either way, it's shameful that Fab can sue for look/feel.
Uh, really? You're talking about trademark and trade dress. Why, on this green Earth, should you not be able to protect your marks or dress?
Also, this article points to Braniff, Trans-Texas, and Continental suing Southwest as a historical corollary: It's not. Southwest was sued because it was operating outside of federal regulations (which it claimed it could avoid because it only operated in Texas) [1]. Fab is suing based on marks and dress--something wildly different from Southwest's suit.
Additionally, trademark law nearly requires you to vigilantly protect your marks. In that way, it protects against selective suits and bullying where beneficial.
[1]: https://en.wikipedia.org/wiki/Southwest_airlines#Foundation_...
Uh, really? You're talking about trademark and trade dress. Why, on this green Earth, should you not be able to protect your marks or dress?
Also, this article points to Braniff, Trans-Texas, and Continental suing Southwest as a historical corollary: It's not. Southwest was sued because it was operating outside of federal regulations (which it claimed it could avoid because it only operated in Texas) [1]. Fab is suing based on marks and dress--something wildly different from Southwest's suit.
Additionally, trademark law nearly requires you to vigilantly protect your marks. In that way, it protects against selective suits and bullying where beneficial.
[1]: https://en.wikipedia.org/wiki/Southwest_airlines#Foundation_...
What's even worse about this case is that Fab's business was very obviously inspired by companies like Groupon and Pinterest.
This article tells us that the lawsuits are killing startups, but not so much how they're doing so. I guess we can sort of fill in the blanks, but then why read the article?
Quoth the author:
"I've been an advisor to the company for years, and you'd be hard pressed to find a more hard-working, dedicated founding team that has endured every roadblock and frustration a startup can experience. They recently decided to pivot to selling modern design-oriented furniture, art, electronics and housewares aimed at young professional men -- a segment they understood well since it was one to which they also belonged. Things have been going great for them, and I couldn't be happier."
He's a party with a vested interest, and is doing his bit to spin sympathetic narrative. With humans, a good story is much more persuasive than facts or content or substance.
"I've been an advisor to the company for years, and you'd be hard pressed to find a more hard-working, dedicated founding team that has endured every roadblock and frustration a startup can experience. They recently decided to pivot to selling modern design-oriented furniture, art, electronics and housewares aimed at young professional men -- a segment they understood well since it was one to which they also belonged. Things have been going great for them, and I couldn't be happier."
He's a party with a vested interest, and is doing his bit to spin sympathetic narrative. With humans, a good story is much more persuasive than facts or content or substance.
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As it stands, this article is mostly linkbait/self-promotion.
The title is very misleading; this article isn't about a trend, it's really about one startup (that the author of the post is an advisor for) getting sued. It's full of meaningless promotional statements like "Touch of Modern actually seeks out modern products exclusively, to the exclusion of the standard bourgeois bohemian hipsterdom of Fab", yet never even comments on what the lawsuit is about.
Just because a company is small doesn't mean that anybody suing it is "abusing the system". If you're saying the lawsuit is baseless and designed to just penalize the startup, say SOMETHING about what the lawsuit is, don't just say how awesome your product is.