Apple wants to take Psystar and its clone customers to the cleaners

Stephen Withers
Thursday, 17 July 2008 13:19

Opinion and Analysis

Given that Psystar has been promoting its Open Computer and OpenServ as alternatives to Apple products, it's hard to see how anybody would be confused or misled. But I can't blame Apple's lawyers for trying it on.

Similarly with the trade dress allegations. While I accept that elements of Mac OS X can be regarded as distinctive trade dress (including the use of the Apple logo in the menu bar and the design of the Dock), I'm inclined to argue that in this situation trade dress applies to the software, and the software Psystar is supplying to its customers appears to be genuine units of Mac OS X, manufactured and sold by Apple.

Upholding Apple's claim would be like accepting trade dress arguments so a movie studio could stop businesses selling legitimate DVDs as part of a package with a DVD player and a TV. You know the sort of thing: you're haggling over the price of the equipment, and the salesperson says "OK, it's $899 but you can choose any two DVDs from that section." Maybe that practice is prevented by US law, but to me it seems a misuse of the trade dress concept.

As for trademark dilution. Apple's argument could be paraphrased as "we make quality computers, Psystar doesn't, so they're both trading on and harming our reputation."

Well, maybe. But wouldn't that depend on the judge agreeing that consumers were confused or misled by Psystar's marketing?

Similarly, the unfair competition claims seem to rely on the argument that Psystar is unlawfully copying and distributing Mac OS X (remember, the company appears to be purchasing and passing on a copy of the operating system that was sourced through legitimate channels), and that customers are being confused.

Some of the commentary surrounding the case seems misinformed or even stupid. (If you think either of those terms can be applied to me, then feel free to post to our forums - but please explain exactly where you think I'm wrong rather than just slagging me off.) Please read on to see the issues I'm complaining about.