Gary Fong Album Software Trademark Infringement

[GARY FONG INC]

Hi everybody.

We got numerous emails regarding a certain 25 year old Houston Photographer that has knocked off my "Power Console" software. We know who he is and my intellectual properties attorneys are working on it.

It is interesting that he said, 04-25-2006, 08:33 PM
While i refuse to just hand him $100 for some photoshop actions, i decided to make my own collection of actions for my album designing needs.

and he also said:
"How is it stealing if i can make my own actions? I am not downloading his "work" and claiming it as mine. I have been building the actions for the past weeks with my knowdlege of photoshop - things i already do, I just didn't have them compiled into actions like he has them.

While i did like his idea of compiling it together...i don't think i stole his "codes", i mean anyone with photoshop can make actions, you know that."

This is why you don't want to "assume" anything about what's legal and not legal without consulting an attorney. What he has done has infringed on what is called "Trade Dress" of my Power Console software. This could makes him liable for TRIPLE our damages, because the action was willful (evidenced by the part where he says, "I refuse to just hand him $100, so I made my own..." Also, he will be liable for our attorney's fees and costs if he's found liable, and I can't find a better stack of beautiful evidence against him.

We litigated against a photographer against a similar act, and a federal jury gave us $245,000 in damages, plus legal costs and attorney's fees. You can click here to see the jury's verdict.

I thank the forum administrator for taking this thread down. Now I am asking a favor. If you received any version of his software, we are working on some type of "reward" from the proceeds for the evidence that we get from you to take this to prosecution. We'll need:

1) any copies of emails you have received from this photographer regarding the album software, any specifications he has claimed and MOST importantly, if you actually have received the software, PLEASE forward me the emails especially with the date that you received it.

2) any copies of software that were emailed to you. If you could forward it to me, I will forward it to my attorney. Each version that you receive we will include you in a reimbursement from our proceeds of the legal action.

Please email to "escalate@garyfong.com"

Mostly what he assumes is that just because he gave it away free, that he isn't liable for damages. He is dead wrong. To understand what he has done, click on this link.

And here is what we will be seeking in court, triple damages for all of our loss in sales, the legal costs of an injunction, as well as legal costs of prosecuting our claim. I also want to add that under the new bankruptcy laws, we can attach assets and wages until the judgement is paid in full, which in some cases can last a lifetime. CLICK HERE to see what the law allows us to collect

What he has done is very very serious, and it is important to understand that just because you assume that something isn't against the law doesn't make it true. Think carefully before you act, and seek legal advice before knocking off somebody's product. The actions you take may be very serious.

Thank you in advance for all your help.

Gary Fong,
President, Gary Fong Inc.

[AjP]

it is really sad when things like this happen and also so sad that you appearance on our wonderful forum cause by this bad event and not because we have great group of photographer here.

[GARY FONG INC]

AJP - looks like a nice community. I have great memories of Texas since I've taught at Texas Schools twice - and had SO much fun there.

Mostly I want to thank the members of this forum that contacted me directly and told me about it. This is why I signed up.

I remember once when I was teaching in Dallas, a photographer stole my Canon camera, and man I got it back fast. Jay Young did a lot of detective work, and got my camera back. He went around and found all the witnesses that saw who took it, and anyway he got my camera back. When I said thank you SO much he just said, "don't mess with Texas". :)

[LoungeLizard]

The photographers in this forum are very aware of copyright protection and also of intellectual property protection. I think if you stay around, you'll see plenty of examples of that.

[Ray]

Wow, your reputation precedes you.

[Holly]

Welcome to the group Gary. I am sorry about the current trouble, but good to see you around anyway. :)

[Abel]

Gary, I know the circumstances that led you to us to begin with are very unfortunate... for that I apologize...

...and to build on what AJP mentioned, we have a great diverse group of photogs here from all over Texas and some from other states and countries as well! We just refer them as being from "West Texas" and/or "East Texas" respectively... hehe

So with that being said... I'd like to say.... Welcome "Gary from West Texas".... We're glad to have ya!

[Shane]

Welcome to the site Gary . . . I hope you will stick around long enough to see the talent that abounds on this board.

[awsilver]

I'm a little confused by this whole thing...since I would think the copyright would be for the algorithm and not on the layout of images on page (or we are ALL in trouble) -- not sure what the grounds would be and how copyright would be infringed. So if someone lays out photos by hand and it happens to be similar to what the "Power Console" produces then someone is going to get sued? I doubt it, but it begs to be answered - since I would think the real play here is to sue Adobe for including a scripting engine inside Photoshop that allows the end user to replicate "Power Console".

Sounds to me like trying to copyright ones and zeros. I'll be interested to see how this turns out, since if its found to be copyright infringement, I'm submitting copyright on using layers to manipulate images!

Curious...
AW

[jeffkohn]

Well I have no idea what thread or sequence of events sparked this whole issue, so I'm going strictly off the comments excerpted above. But I sure hope you're not asserting that anybody using Photoshop actions to automate the process of creating album pages is infringing your copyright... to me that sounds about as silly as the guy who got a patent for "multimedia software" and thought he could sue every software company that had ever published sound/video content on CDROM's.

It also looks like the verdict you linked to is a completely different situation.

[GARY FONG INC]

No, it isn't copyright infringement, it is trademark infringement of the "Power Console". Copyright and trademark infringement are two totally different things.

For a great education on the difference, please go to my original post and click on the links that I referred to. It explains the difference.

[jeffkohn]

Originally Posted by awsilver

I'm a little confused by this whole thing...since I would think the copyright would be for the algorithm and not on the layout of images on page (or we are ALL in trouble) -- not sure what the grounds would be and how copyright would be infringed. So if someone lays out photos by hand and it happens to be similar to what the "Power Console" produces then someone is going to get sued? I doubt it, but it begs to be answered - since I would think the real play here is to sue Adobe for including a scripting engine inside Photoshop that allows the end user to replicate "Power Console".

Sounds to me like trying to copyright ones and zeros. I'll be interested to see how this turns out, since if its found to be copyright infringement, I'm submitting copyright on using layers to manipulate images!

Curious...
AW

You cannot copyright an idea, nor can you copyright a whole software/product category. In fact you can't even copyright a "look and feel". To infringe copyright you would have to actually copy/use the actual content/implementation: ie source code, graphic content (icons, images), or textual content.

In some cases you may be able to get a patent for a specific idea, but that is a different situation (and frankly, some of the stuff the govt has handed out patents for in the tech industry over the last decade or two is just absolutely absurd).

[jeffkohn]

Originally Posted by GARY FONG INC

No, it isn't copyright infringement, it is trademark infringement of the "Power Console". Copyright and trademark infringement are two totally different things.

For a great education on the difference, please go to my original post and click on the links that I referred to. It explains the difference.

Like I said, all I have to go on is the info you've provided above since the original thread is apparently gone. Did he call his product "Power Console"? If so I agree that was pretty stupid and you have a case there. But if all he did was release some PS actions that function similarly to how your product functions I really don't see how that would be a trademark infringement.

[GARY FONG INC]

I'll do a post explaining what is going on at my blog:

http://www.xanga.com/garyfong1

[awsilver]

Your basically going after him for copying your UI and naming, and assuming you trademarked the term "autodrop" as well...so really has nothing to do with the actual scripting at all then, makes a lot more sense now.

[GARY FONG INC]

Glad i could help clear that up. As photographers in the internet age, we really need to be aware of intellectual properties law, and I hope this information is helpful to you.

[adirty1]

Originally Posted by awsilver

Your basically going after him for copying your UI and naming, and assuming you trademarked the term "autodrop" as well...so really has nothing to do with the actual scripting at all then, makes a lot more sense now.

yes that's right. It's the name.... and it looked just like the other software. there are a couple very good defences out there hopefully this guy can get a good lawyer. Which i am not going to go into because i only play a lawyer on tv.

now the thing i dont get is how you could go after some one for loss income when there was no gain to start with. I am not going to buy the actions in the first place but if some one is willing to give them to me than yes i am going to take it. However i wasnt going to buy it in the first place so Xcorp is out nothing..

[AjP]

oh wow, if I understand right.. you going after him just because of UI and naming is looks the same or close to your.. I thought he had stil your code, script.............

wow....................no more comments

[Ray]

So I guess if the guy would have made it look different, and not mentioned this guy's name like he did, it would have been all good.

[brad]

Yea, Ray.. the way I read this as someone created something like Fong's software and touted as "Just like (trademark), only this is free" or "This is a free version of Fong's (trademark)"

Both of which are Very Bad Ideas (tm) <-- Note trademark, please

[Ray]

I agree.. and they want him to pay for each 'loss' they theoretically incurred, under the threat of having to pay 3 times the amount if they go to court. Good way to fund a business I guess, a good lesson indeed

Originally Posted by adirty1

now the thing i dont get is how you could go after some one for loss encome when there was no gain to start with. I am not going to buy the actions in the first place but if some one is willing to give them to me than yes i am going to take it. However i wasnt going to buy it in the first place so Xcorp is out nothing..

[adirty1]

yeppers.


as stated by gary, "One thing I should add is that people wonder why I need to be so litigious. In this case as well as all prior trademark infringement cases, I have had to sue because to allow infringement weakens the strength of the mark."

You dont have to sue you choose to sue. This guy is 24 and a simple letter explainning what is going on and if he doesnt stop then you will be forced to take legal actions. One can be known as a good guy or know as something else.

it's just business it's not personal at least that's what johnny two toes used to tell us.

[adirty1]

Originally Posted by brad

Yea, Ray.. the way I read this as someone created something like Fong's software and touted as "Just like (trademark), only this is free" or "This is a free version of Fong's (trademark)"

Both of which are Very Bad Ideas (tm) <-- Note trademark, please

yes it wasn't the best idea. However how many times have you seen free ware that was just like the real thing. for god sakes OFFICE and OPEN OFFICE and STAR OFFICE

[brad]

You do have to sue.. or at least take official legal action of some sort.. otherwise, a court can rule that the trademark owner allowed it to be "watered down" by "vernacular use" ... if you think this can't happen.. go do some research on "Band-Aid" sometime.

Part of owning a registered trademark is that you *have* to defend it in a way that is recognized by the court.

[brad]

Originally Posted by adirty1

yes it wasn't the best idea. However how many times have you seen free ware that was just like the real thing. for god sakes OFFICE and OPEN OFFICE and STAR OFFICE

Except that "Office" isn't a registered trademark. "Microsoft Office" is. (And you can't register "Office" as it is a single word in common usage.)

The violation was (apparently) because he used the term "Gary Fong's Power Console" to promote his own thing..

[adirty1]

Originally Posted by brad

Except that "Office" isn't a registered trademark. "Microsoft Office" is. (And you can't register "Office" as it is a single word in common usage.)

The violation was (apparently) because he used the term "Gary Fong's Power Console" to promote his own thing..

No the violation was that the warez might be better and was for free...

[awsilver]

Originally Posted by brad

Yea, Ray.. the way I read this as someone created something like Fong's software and touted as "Just like (trademark), only this is free" or "This is a free version of Fong's (trademark)"

Both of which are Very Bad Ideas (tm) <-- Note trademark, please

Careful Brad, the company I work for has already registered IDEAS®...wouldn't want there to be any issues with that :D <-- I'm joking of course, well, except for registering IDEAS®.

[brad]

Whatever.. I'm done with the topic.

And stay away from my registered trademark.

(Yes, I've been down this path, that's why I can be somewhat sympathetic... I don't know that there wasn't a cease and desist first and I don't care... I just think its unfair to gang up on the person who had his trademark violated as if having the trademark and defending it were what was wrong.)

That, is my final word.

[Shane]

Originally Posted by adirty1

No the violation was that the warez might be better and was for free...

So . . . using your logic, everyone would be switching to the "warez version of Office" as you call it. Hmmmm, I think Microsoft still owns most of the Office market, so obviously the warez version is not better, nor will it ever be accepted in the mainstream.

The problem is that in today's society, people want something for nothing.. Warez, mp3's, etc... - the younger generation is used to STEALING what they want to use with no regard for the time and effort it took to develop the original. Most of the time, it is not the actual work that is valuable - it is the original idea that the "inventor" came up with. Many people can "copy" a photograph; and, in some cases, get a better result, but the original is always more valuable as it was the unique idea that the viewer first liked.

Just like in this case . . . it is not the fact that "Houston" could not have come up with these actions in the first place, it is the fact that he blatently copied the design and work of another person and then even used the other persons name/product name in the "marketing" of his product. Yes, it does take litigation to solve issues like this - otherwise, you leave yourself open to others doing the same thing to other products that you have "invented".

[Abel]

discussion on the topic at hand is fine...

lets just keep it civil and respectful to the parties involved...

or else.... No soup for you! and you! and you!

sorry... a little Seinfeld flashback...