There is an assumption out there that China’s legal deck is completely stacked against Western companies. China bad. South Korea good. Starbucks just proved it is not that simple. I have handled at least 100 legal matters in Korea and…

Then lets think of the economic consequences of all this. Consumer satisfaction is down since they have to consume a certain amount of sub-optimum coffee. You also have a waste of coffee and other resources since the bad “Starbucks” locations would be taking up the same amount of resources to produce the sub-optimum coffee. Finally we also have the opportunity costs these inefficiencies of wasted coffee, real estate, etc.

So would it not be more economically efficient to label one set of stores “Starbucks” with a certain amount of predictability of the product and another a non-confusing name/logo that would deliver another predictable product.

As for the Patent question, there is no doubt that it distorts the market. The bigger question though is does it distort the market in a favorable or unfavorable way. there are quite a few ways to take that discussion from there, but its different from the trademark question in my opinion.

Linux, on the other hand, is open source, meaning that the source code is accessible by anyone. Anybody around the world can contribute, enhance, tweak, or troubleshoot Linux-based software versus a few hundred brick & mortar employees. Linux is engineering practices driven while Microsoft Windows is mostly market or business logic driven (big difference which leads to the difference in the quality of the products). If you want to install a web server or an email server, you just download Apache or Sendmail (for free) and its robust, rock stable, and well designed. With Microsoft, you have to pay license fees of hundreds of dollars for IIS or Exchange server which are not as good as their opensource equivalents. So the open source model has already proven its merit over the closed source model. Furthermore, IP protectionism is conduscive to monopolization, and we all already know that government and legal sponsored monopolization is NOT preferable to unbridled, free-wheeling competition.

Furthermore, the current situation within the IT industries in Asia clearly demonstrate that IP protectionism creates more hassle than good. Samsung and LG doesnt want to pay hefty royalties to Qualcomm for the CDMA chips. So they develop their own chips. It’s just a different communications protocol but this creates a lack of standardization and uniformity. In a networked world, different devices that cant even talk to each other is completely useless and this slows down the overall rate of progress within the industry. Same thing with Chinese IT companies with their next generation wireless networking equipment. If IP protectionism wasnt an issue then no one has to waste their time and energy sorting out bogus and useless standardization issues.

People can still make money in an IP protectionless world. Sell the product. And if the competitor takes your concept and creates a better product using your concept, that’s good for the consumer, good for the market, forces you to be more competitive and vice versa, and drives quality and development. If all companies do is fight stupid, time-wasting IP litigation issues, only the lawyers get rich (and they dont contribute anything of tangible value to society anyway), the cost is passed on to the consumer, wasted talent and effort goes into fighting legal battles rather than developing new technology or products, and basically nothing valuable is accomplished.

You see a degree of undeniable similarity. But the two arent exactly the same either. How do you quantify the degree of imitation? At what point do you draw the line?

Simple answer is that you don’t, because if you do, you end up being a silly moron who does the same thing the Korean Patent Court did and find that the differences are just too great for anyone to actually be confused. Of course, that also assumes that your average coffeehouse customer is going to linger in front of the sign long enough to register the differences above the obvious level of similarity, which I would be willing to wager, most people just don’t do.

The simple answer to your questions is that you draw the line either where the average consumer is:

1. Likely to be confused or
2. Actually confused.

And of course, this doesn’t come down to the sort of fine-tuned, nitpicky and detail-oriented analysis that the court in this case seemed to embrace — it comes down to whether or not the average consumer, upon seeing the sign in question would be likely to confuse it for Starbucks’s, even if, upon a second look, they were to realize their mistake. Because otherwise, ‘Starpreya’ is using that confusion between their products and Starbucks’s in order to unfairly compete — they’re betting that people, once they’re at the door and aware of their mistake, will still come in for a cup of coffee.

Furthermore, in a nation like Korea, the wrong precedent set by a case such as this could unleash an avalanche of similar litigation, which would be a nightmare.

Correct me if I’m wrong, but if Korea set the wrong precedent in this case, couldn’t they just rule differently in the next one? Being a civil law jurisdiction (rather than a common law one), Korean courts generally have that luxury, don’t they?

If coffee consumers decide that Starpreya is a better option than Starbucks, or vice versa, then the jury has reached its verdict.

So how do the consumers decide which is better, if you take away their only basis for making that decision (a protectable trademark)? After all, under your system, anyone could open a coffee shop and call it ‘Starpreya’, so how would the real Starpreya be able to distinguish their coffee from the imitators’?

Microsoft ripped off the mouse, pointer, Windows and icon OS interface from Apple Computers. Apple, in turn, stole these concepts from Xerox PARC, which conceived them in the late 70s. Now, does either Microsoft or Apple pay dues to Xerox?

They probably wouldn’t today, since if the computer mouse was invented in the 70s, the patent on it would have expired by now. Did they ever pay royalties in the past? I don’t know.

If DARPA had insisted on keeping the predecessor of the TCP/IP network protocol a proprietory item, there would be no internet today.

DARPA, as a branch of the US government, cannot hold intellectual property rights. So you’re a bit off-base there. But Microsoft Windows, Apple OS, UNIX, and plenty of other operating systems are protected through various (strictly-enforced) intellectual property protections. None of this seems to have hindered the development of the Internet much… In fact, without copyright protection, what incentive would Microsoft or Apple have to update their operating systems? We’d still be running off DOS.

And even assuming that DARPA could have copyrighted the TCP/IP protocol, there would have been no restrictions on anyone else coming up with a similar protocol, so that would have set the Internet back what? A couple of months to a year or two?

Information should be free. Intellectual property protectionism is regressionary and anti-progress. This is what history teaches us ever since fire was discovered.

Impressive, considering that intellectual property protections have only been around (at most) a few hundred years. And considering that those last few hundred years have seen greater advances in the sciences than the millions before, how exactly is IP protection either regressionary or anti-progress? Can there really be a plausible argument that, absent IP protections, we’d all be amazingly more advanced than we are today?

Because of IP protection, writers get paid to write books and musicians get paid to perform music, while scientists get paid for their inventions. Because of IP protection, we can be reasonably certain that when we buy ‘Coca Cola’, we’re not buying motor oil or pig’s blood (or Pepsi). How is any of this a bad thing?

Microsoft ripped off the mouse, pointer, Windows and icon OS interface from Apple Computers. Apple, in turn, stole these concepts from Xerox PARC, which conceived them in the late 70s. Now, does either Microsoft or Apple pay dues to Xerox?

If Xerox had insisted on protecting their intellectual property, hell, we may still be working with computers that is reminiscent of the old DOS. The mouse and Windows interface may still be curious laboratory concepts. We would not have had the computer revolution. There would be no IT industries.

If DARPA had insisted on keeping the predecessor of the TCP/IP network protocol a proprietory item, there would be no internet today.

Information should be free. Intellectual property protectionism is regressionary and anti-progress. This is what history teaches us ever since fire was discovered.

My opinion is that the legal establishment (of any society) do and should have much better things to do than occupy themselves sorting out supremely pretty issues such as this. In fact, the government and the courts should stay out of most purely business related intangible property or intellectual property issues. Let the market decide. Let the “invisible hand” be the judge. If coffee consumers decide that Starpreya is a better option than Starbucks, or vice versa, then the jury has reached its verdict.

Take this logo issue. Imagine you’re the judge sitting on the bench. Starbucks claims that Starpreya imitated their original logo. You look at the two logos. You see a degree of undeniable similarity. But the two arent exactly the same either. How do you quantify the degree of imitation? At what point do you draw the line?

Let’s see…

Similarities:

Both logos are circular.
Both have a green, white, black color scheme.
Both have a name that is two words that start with a “Star…” and ends with “Coffee”
Both logos have two stars

Differences:
The letters are different fonts
The green color are of different hue
The icon in the middle is different (Starbucks’s is female while the other one could be either male or female, who knows?).
The picture of one is a profile while the other is face-forward.

You can see how this exercise can get really absurd if you start going down this slippery slope. I mean how do you objectively quantify this? It’s clearly an inexact science, sort of like handwriting recognition or psychological profiling.

Furthermore, in a nation like Korea, the wrong precedent set by a case such as this could unleash an avalanche of similar litigation, which would be a nightmare.

Even in the United States, I cannot tell you how many Korean-owned businesses there are that rip off well-known brands, even from other big-name Korean businesses. There must be hundreds of mom and pop “Hyundai Automotive Repairs” or a “Samsung Call Taxi Service”, you get the drift.