Dbrand pulls PS5 "darkplates" from sale entirely then goes on a Twitter rant

[InstantNewt]

11 minutes ago, valdyrgramr said:

This is also fraud as Sony is claiming they own something they legally cannot

I can’t believe I have to say this, but Sony did in fact make the PS5. They legally own that design. 

[Derangel]

2 minutes ago, valdyrgramr said:

To a point, but not every aspect.  There are things that you can't sue over in this context.  In fact, they don't even make every part of the PS5s themselves.  AMD with the help of others make quite a few parts for them.  I wouldn't be surprised if Foxconn is involved too.

They don't have to make every part, they still designed the over-all system. They designed how it looks, how it goes together, how it's cooled, the OS, and so on. Every bit of that can be patented. In fact, there are likely dozens of individual patents related to the PS5 and how it functions. Not to mention the controller.

[Derangel]

3 minutes ago, valdyrgramr said:

You can't patent a preexisting shape, which is what one person argued.  I can also argue that if Sony isn't willing to sell replacement side panels why can't I get them elsewhere?  Because Sony wants me to buy another console?  That is ridiculous.

Yes, you can. It does not matter one bit if the PS5 has parts resembling a pre-existing shape. They can still be patented. Also, the side panels do not resemble pre-existing shapes, especially in the context of video games. Sony literally has trademarks on the basic shapes used on the face buttons on their controllers.

 

You can make that argument all you want, but there is no legal requirement for any company to provide replacement parts. Why do you think people want right-to-repair so badly?

[atxcyclist]

I would understand how this could be a problem if Dbrand sold every part of a PS5 so that you could build one without buying through Sony, but these are accessories. Sony still has to sell you a PS5 in order for you to want to purchase these, so I fail to see how Sony is being harmed by the sale of these plates.

 

And yes, establishing harm is the way we deal with this here in the United States. That's why a 3rd party company can sell a replacement alternator for a car without being sued by the original manufacturer, because Ford has to sell you an F-150 pickup for you to eventually need a ball joint or brake pads for it even if those parts are Ford designs.

[Derangel]

4 hours ago, valdyrgramr said:

No, you cannot copyright/own the patent/etc to things that others own, already exist, or are too commonly used(forgot the terminology) yet why Paris Hilton couldn't copyright "That's hot".  Also, upon further reading, even if you could it would have to argue the unique factor.

 

Well, why is Sony legally allowed to harass companies?  Why is Sony allowed to own something so common when even a celebrity can't hold this type of copyright?  You can't have it both ways.  Either Paris was lied to, or Sony is bribing people.

 

As far as common phrases go this article talks about things that cannot be copyrighted (and the situations in which those things can be copywritten) https://www.plagiarismtoday.com/2010/01/08/5-things-that-cant-be-copyrighted/ Though, it should also be noted that patents are a whole different ball game. Here's an article about design patents: https://www.investopedia.com/terms/d/design-patent.asp

 

Remember: Apple has a patent on the rounded corners of a phone. Round corners are not something Apple invented, but the design patent was still valid.

[williamcll]

Even Apple doesn't do these kind of things (at least I don't think they do).

[Arika]

8 minutes ago, williamcll said:

Even Apple doesn't do these kind of things (at least I don't think they do).

Apple sued Samsung in 2011 over the design of their phones...you know, rectangles with rounded corners, they won.

[jagdtigger]

20 minutes ago, williamcll said:

Even Apple doesn't do these kind of things (at least I don't think they do).

No apple just sued someone who sent damaged screens to china for glass replacement for selling fake displays....

[leadeater]

7 hours ago, valdyrgramr said:

You can't patent a preexisting shape, which is what one person argued. 

Coca-Cola Coke bottle is patented and no other company can make bottles in that shape.

 

https://time.com/4105134/coke-bottle/

 

Ever seen any drink in a bottle from a brand not owned by Coca-Cola look like a Coke bottle?

 

A bottle is a pre-existing shape, bottles came before and after the Coke design.

[LAwLz]

13 hours ago, valdyrgramr said:

Technically, Sony is the one who can get in legal trouble here.  Since Sony is usimg the legal system to harass DBrand they can countersue them.  On top of that, DBrand can add fraud to their case considering Sony made several fraudulent claims to harass them.  Not just that, but Sony seems to be looking to financially hurt DBrand over it, thus strengthening the argument of fraud.

Almost everything you have said in this thread is wrong.

1) Sony is not "using the legal system to harass DBrand" since sending a C&D is not "harassment".

2) Sony aren't suing DBrand. 

3) This is in no way shape or form "fraud".

 

 

11 hours ago, valdyrgramr said:

Sony is known for strong arming

You've used that term 4 times in this thread and I don't think you know what it means. Sending a C&D is not "strong arming".

 

 

11 hours ago, valdyrgramr said:

companies smaller than them who aren't violating their IP. 

We don't know if DBrand are violating their IP or not, or if the IP is valid.

 

 

11 hours ago, valdyrgramr said:

Considering part of it is to intentionally harm them financially that makes is fraud too.  

That's a very bold, and unsubstantiated claim to make.

Also, it's not fraud just because you cause financial harm to someone. I can't sue Disney if they go after me for selling unlicensed Iron Man figures for example, even though they would be going after me with the intention of "causing financial harm" to me.

 

 

10 hours ago, valdyrgramr said:

They didn't design that shape, and that shape has existed longer than Sony has been in business. 

[Citation Needed]

 

 

I think people with pretty much zero legal knowledge should refrain from making bold comments on who is in the (legal) right here and stick to commenting on what outcome they hope for instead.

[Video Beagle]

15 hours ago, BlueChinchillaEatingDorito said:

If so... then I'm mixed about this. If I'm not mistaken, IP is an annoying thing where you cannot cherry pick which instances you want to sue. You either go after every instance or basically completely loose the right to protect it. 

 

That's not the case with ALL IP...different types have different requirements. Trademarks have to be defended. I don't know about patents. At a guess, based on the concept they embody, I'd guess they don't, but I've never studied patent law (as opposed to trademark and copyright) and it's 4am and I don't care enough to google.

 

 

13 hours ago, valdyrgramr said:

Technically, Sony is the one who can get in legal trouble here.  ....

 

9 hours ago, valdyrgramr said:

Well, Sony is breaking two laws here and is also doing their usual strong arm game. ....

[WolframaticAlpha]

15 hours ago, vetali said:

Not remotely sure what the point here. Hes responsible for Don Mattrick. Once the Kinect came out, Xbox was no longer a product I wanted to play games on.

By your logic, he was also responsible for phil spencer and peter moore

[LAwLz]

I am reading the Reddit thread right now and I can't help but smile. Glad to see that their shitty marketing is backfiring.

They went from "lol we are such bros we're gonna tell Sony to sue us if they got a problem with our attitude" to "baww help us Reddit we are in trouble. Sony is being a big meanie" real quick.

 

The impression I get from DBrand is that they know they are screwed, so now they are just throwing a tempera tantrum and try and get revenge on Sony by causing as much public damage as possible.

Sony reached out months ago and informed them that they had a patent for the design, and DBrand still went ahead and said "go ahead, sue us". Now that Sony are saying "please stop or we will sue you", they are being cry babies on Reddit.

 

Here is a picture from the thread:

Spoiler

 

[WkdPaul]

25 minutes ago, valdyrgramr said:

You have to argue a uniqueness factor, which I clarified.  At the time that shape also didn't exist before Coke used it.  Sony's shape is not unique nor did they create the shape.  So, there's not much they can argue for there.

Wait, did you just argue that Sony didn't design the PS5 and that it existed before????

[LAwLz]

1 minute ago, valdyrgramr said:

Sony's shape is not unique nor did they create the shape. 

Can you please post prior art to the faceplates?

Please note that regardless of what dBrand's shitty marketing team is telling you, the issue is not the symbols. There are four separate issues that all, when combined, caused Sony to ask dBrand to stop selling the faceplates.

 

1) The design of the faceplate (the shape as well as how it clips on to the console) is protected by Sony. You can't just copy that and sell it as your own.

 

2) dBrand are selling items with the Playstation logo on them. That's a big no-no that not even third party parts for cars or phones do (unless they want to get sued but don't care). dBrand can't legally sell products with the Playstation logo on it just like I can't start a company selling clothes with dBrand's logo on them.

 

3) The shapes dBrand put on the faceplate are, according to dBrand themselves, based on the trademarked Playstation icons. By the way, despite the hilariously stupid Squid Game comparison dBrand's idiotic marketing team tried to pull, the fact of the matter is that you are not allowed to just take whatever name or shape you want and then go into a market. The reason why Squid game isn't "breaking Sony's trademark" is because Squid game is a TV show and they had the symbols on a business card in once scene. Meanwhile, dBrand are in the console accessories market, selling products for gaming consoles.

This is similar to the issue Apple Inc got into when they tried to enter the music industry. Did you know that there is a company called "Apple Corps" that was founded by the Beatles? Apple Inc was sued for trademark infringement but were allowed to keep their name as long as they did not enter the music industry (because having a computer company called Apple and a music company called Apple was not seen as a big deal, that deal did not hold up well when iTunes launched I might add). Anyway, having two companies doing similar looking things is not an issue as long as they are not in the same industry. Case in point, circles, triangles and squares in a TV show vs on a game console. 

 

4) dBrand named and marketed their products things such as "Sony PS5 Skins". That can be seen as misleading.

 

 

All these four things COMBINED, is the issue. You can point out flaws in these things individually but when combined it becomes an issue. It was the same with the Apple vs Samsung lawsuit. Apple does not own rounded corners. However, they do own rounded corners IN COMBINATION with other design things. Same deal here.

[InstantNewt]

8 minutes ago, PmpkinPaul said:

Wait, did you just argue that Sony didn't design the PS5 and that it existed before????

That's been his argument this entire time.

 

I forgot PS5 panels have actually been roaming the Earth back in prehistoric times where they hunted down smaller, weaker skins for dominance. Dbrand actually found a pile of their skeletons in a cave and has been selling them ever since. Sony has no right to claim they designed them, they found white skeletons in a different cave and thought it would be sick to attach them to their new AMD box (that they also apparently stole because they didn't design the whole thing down to the atomic level with proprietary components).

 

Duh.

[Derangel]

4 minutes ago, valdyrgramr said:

No, if you read into all the different arguments from Reddit to here, people are arguing that Sony's symbols like the squares, triangles, circles, and Xs are unique to Sony when those are too common and existed way before even Sony was a company.  The panels used, are not unique shapes which people have argued they are.  FFS, there are memes anout the PS5 to the point it's lost an identity of being unique.  Seto Kaiba, Cell, and other electronics too.  And, on top of that, DBrand never claimed these were made by Sony nor that they had any affliation with them.  I'm also not sure how side panels would put Sony at a loss when you can't even use them without having a PS5 in the first place.

I cannot believe this has to be explained but memes are not legal arguments nor do they prove anything.

[leadeater]

1 hour ago, valdyrgramr said:

You have to argue a uniqueness factor, which I clarified.  At the time that shape also didn't exist before Coke used it.  Sony's shape is not unique nor did they create the shape.  So, there's not much they can argue for there.

Similar shapes did exist before the Coke design. If you read the article the entire point was to unify the bottle design shape and also quality wherever it was sold because around that time drinks quite often just came in whatever glass bottle of similar shapes and sizes of the same volume.

 

A 'Bottle' is a common definition of a shape, like if I were to say Ball I wouldn't picture a Brick but rather a Sphere. If I say 'Bottle' you will think of images that look like... Bottles. Weird huh?

 

Sony's shape is no more or less unique than Coke's patented bottle design/shape.

 

Show me any other device with the exact same shape? Ok now show me devices with 'similar' shapes, plenty right? So what is the difference between the exact shape of the PS5 side covers and the other devices? Sony owns that chassis design and that side panel design, that's the difference.

 

As such you won't see any Pepsi in 'Coke' like bottles and you wont see any Xbox's in PS5 like chassis.

[leadeater]

10 minutes ago, valdyrgramr said:

You cannot use these without having a PS5, the shape is not unique to the PS5

Hang on I'm confused. If the design is not unique then how come it ONLY fits a PS5?

[leadeater]

21 minutes ago, valdyrgramr said:

You'd have to do a lot of testing to prove that one, and lastly even if it did you still need to attach it to a PS5 in order to use it.   So, how is Sony harmed?

That's not how patents work, you don't get to profit off of someone else's design or work regardless of whether harm befalls the original creator/inventor. A Patent is an exclusive right.

 

Quote

A patent provides the inventor exclusive rights to the patented process, design, or invention for a certain period in exchange for a complete disclosure of the invention.

 

 

21 minutes ago, valdyrgramr said:

The shape has existed before the console itself has

And that's not the issue, refer back to Coke bottle. Last I checked whine and rum bottles exited in the early 100's AD. Glass bottles of all manor of sizes, shapes, volumes have existed for thousands of years. So what makes the Coke bottle different, in such a way it can be patented. That is due to the curving profile and proportions. That is why Pepsi bottles have had; Straight sides, dumbbell shape ends, twists/waves, tapers not curves. Over the decades all Pepsi designs have been sufficiently different and don't have the Coke distinctive curves and proportions. 

 

Now lets look at DBrand's PS5 covers. They are the exact same dimensions, they have the exact same fitment and clip locations, they have to be to fit on to the PS5. Having both the shape/dimensions either exactly the same or so similar and also having all the mechanical fixtures to make it fit is a clear problem. 

 

But now lets take it further, below is an image of a DBrand Darkplate for the Blu-ray model:

Now if you can try and explain that away then you need to join DBrand's legal team.

Edited October 18, 2021 by leadeater

[leadeater]

3 minutes ago, valdyrgramr said:

A dashboard that has the same shape has cutouts for electronics too.  This has been a thing with this shape for twenty plus years.  Sony has no argument.

And a Pepsi bottle is a bottle shape and a Coke bottle is a bottle shape, therefore Coke's patent is invalid? I think not. Sorry but you are wrong on this one I'm afraid.

 

Edit:

DBrand is Cinderella, the shoe fits. Everyone else who doesn't fit in to the shoe is Cinderella's stepsisters.

[GDRRiley]

1 hour ago, LAwLz said:

1) The design of the faceplate (the shape as well as how it clips on to the console) is protected by Sony. You can't just copy that and sell it as your own.

but you can and it gets done daily for everything other than tech, if Dbrand compares the sidepanels to a car fender they've got a strong case for why sonys in the wrong. Both are mostly style with some functionality.

 

Quote

2) dBrand are selling items with the Playstation logo on them. That's a big no-no that not even third party parts for cars or phones do (unless they want to get sued but don't care). dBrand can't legally sell products with the Playstation logo on it just like I can't start a company selling clothes with dBrand's logo on them.

where is the PS logo on the darkplates? its not in the corners like the

1 hour ago, LAwLz said:

3) The shapes dBrand put on the faceplate are, according to dBrand themselves, based on the trademarked Playstation icons.

and? if I take the apple logo and turn it into an apple monster running  and eating something? does that mean its still trademarked by apple, no.

you can be inspired by a trademark and make something your own.

 

[Derangel]

4 minutes ago, GDRRiley said:

but you can and it gets done daily for everything other than tech, if Dbrand compares the sidepanels to a car fender they've got a strong case for why sonys in the wrong. Both are mostly style with some functionality.

 

where is the PS logo on the darkplates? its not in the corners like the

and? if I take the apple logo and turn it into an apple monster running  and eating something? does that mean its still trademarked by apple, no.

you can be inspired by a trademark and make something your own.

 

1. The automotive industry operates under a form of right to repair already. This means 3rd parties are allowed to produce replacement parts, with certain limitations in how trademarks are used. There have also been multiple court battles over the years dealing with aftermarket auto parts that have helped shaped the industry. None of this exists for the electronics industry.

 

3. If you take the Apple logo and turn it into an Apple monster and try to use it on any device that is in a market where Apple also operates you would be violating trademark law.

[Velcade]

Are we sure Sony is really suing?  Could be just another PR stunt to get DBrand some spotlight...

 

Hopefully Sony will manufacturer their own plates.  Plates that match the new controller colors would sell like crazy.   

[leadeater]

1 hour ago, Derangel said:

If you take the Apple logo and turn it into an Apple monster and try to use it on any device that is in a market where Apple also operates you would be violating trademark law.

Also until you try and sell it then it's art and protected, once you have a financial gain from it then it becomes a breach. At least in the US creative arts is protected so you can pretty well do anything you like as long as you do not monetize, defame or devalue the original trademark. The second two are also a hard one because parody is allowed and a trademark owner may not like a parody but have no grounds to litigate.

 

Quote

U.S. law does not provide for strict liability preventing the unauthorized use of another’s trademark. Instead, the parodist’s use must trigger liability under trademark laws prohibiting infringement or dilution or through common law unfair competition claims:

• An infringement or unfair competition claim requires proof that the parodist’s use is likely to cause confusion.
• A dilution claim requires proof that the parodist’s use is likely to blur or tarnish the brand owner’s famous mark.

 

There is also no automatic “parody defense” to an infringement claim. Common sense suggests it may be difficult to prove likelihood of confusion sufficient to meet the test for trademark infringement when faced with a “successful” parody, i.e., one that immediately communicates that the parodist is making a commentary about a brand through humor or criticism.

https://www.jdsupra.com/legalnews/trademark-parody-and-freedom-of-speech-70581/

 

So common advice around these is that the best defense is to not monetize such a thing.

 

And that is one of the bigger difference between a Trademark and a Patent, a Patent does give exclusive all encompassing rights to a process, design, or invention. The side covers of the PS5 are a design.

 

Also unlike Trademarks you don't actually have to defend a Patent or risk losing it. You can allow others to infringe your Patent and choose to do nothing about it.