How anti-competitive lawsuits by incumbents are killing early stage startups
blog.garrytan.com
blog.garrytan.com
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.
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.
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.
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.
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.
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.
"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 !!.
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?
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.)
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...
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.
A generic tag icon next to the item price, in a different color? A "sale ending" notice with different color, location, and font?
37signals should start suing all the SaaS websites that were inspired by Basecamp.
A quick google shows that in fact this is sarcastic.
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.
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.
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.
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.
I read the article and felt empathy for a Touch of Modern, but then I see that example and think the article is dishonest.
You either die a hero, or....
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.
https://img.skitch.com/20120816-dhjgxct5wqjq26413w9j654g8q.p...
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_...
"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.