I have been having an interesting email conversation with a reader (who prefers to be anonymous) about the Autodesk vs ODA law suit. Thought I’d share it here.
Reader: By your blog entry, you seem to think there’s some basis to the Autodesk trademark infringement complaint against the ODA. Could you show me where the infringement is? I mean… find a DWG 2007 file – you can get one off the Autodesk discussion groups if you like — and find the bytes that say “Autodesk”. It’s simple enough to use GREP or any binary editor to look for it.
Deelip: I am no trademark expert but from what I understand a trademark can be infringed directly or caused to be infringed indirectly. I would put the ODA case in the latter. I guess the judge agrees with me, otherwise the litigation would have stopped then and there.
Reader: The theory of indirect trademark infringement requires that there is a *direct* trademark infringement, and that someone other than the direct infringer should be held liable for it. For example, there have been cases where trademark holders claimed that an ISP was liable when one of their customers used their service to infringe a trademark.
If Autodesk was alleging indirect trademark infringement on the part of the ODA, they would have had to have pointed to the direct infringement.
So… where is it? Surely it can’t be that hard to find the word “Autodesk”.
Deelip: I am not sure whether this issue is as simple as finding the word “Autodesk”. The whole point of the trademark IP protection mechanism is to avoid confusion as to the origin of the product. It is not absolutely necessary for you to use the word “Autodesk” in order to violate their trademark. All you need to do is create a situation wherein you give the impression to the end user that the product (in this case, the DWG file) has come from the trademark holder. You do this and you are violating the trademark. How you do this is not important. The judge will not get into the technicalities of bits and bytes and how and why. She will just want to know whether the action (whatever it may be) led the end user to believe that the DWG file came from Autodesk software. Obviously the judge saw what I see and we know the rest.
The thing I want to know (which is what the judge asked the ODA lawyer in court) is that instead of doing what they did, why didn’t the ODA sue Autodesk for false advertising? Or they could have use the money now being spent on the law suit to launch an aggressive campaign to portray Autodesk as a monopolistic gorilla trying to squash competition, something which is not difficult to sell. Everyone loves to hate a monopoly.
I also believe that this is a PR disaster for the ODA. I have seen people refer to the ODA as “the hacker’s group” and similar things. The ODA members may consider the ODA as a saviour but the end users (whose opinion is what is being fought for now) may not share that view, mostly because they are not aware of all the details. This was a good chance for the ODA to portray itself as a victim of monopolistic practices by a big rich company. Instead, by doing what they did, the ODA now looks like the aggressor who has been taken to task, which may I add, is not far from the truth. The same arguments of Autodesk’s monopoly now seem like excuses to justify their wrong doing.
It appears to me that the PR people got overridden by the lawyers.
It’s naive to think that Autodesk would not sue ODA for what they did. I’d love to know what their strategy was. Maybe something along these lines.
1) Get sued by Autodesk
2) Release non-infringing libraries
3) Counter sue Autodesk for monopolistic behaviour
4) Win counter suit and humble Autodesk.
Or maybe this was their Plan B. Plan A was simple – Court throws Autodesk’s law suit out of the window.
I pity their PR people. They will have to clean up the lawyer’s mess.