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

[leadeater]

Maybe DBrand should have tried to form an official agreement, maybe they did and Sony said no. If you are going to try and rely on the grace of a company to not strictly enforce their patent then don't publicly goad them which makes them look bad if they do nothing about it.

 

However that's not the issue alone, Sony has in the past and will again make special edition PS5's with with custom side panel art and as such DBrand is stepping in where Sony will be offering equivalent side panel designs, however only when purchased with the special edition PS5 itself.

 

 

Sony will be forming contracts with other IP owners to offer limited edition PS5's with custom side panels.

 

Making vinyl wraps that go over something is quite a different matter and a lot harder to stop if a company doesn't like you doing it because it would be near impossible to argue it's infringing a design patent.  

 

By DBrand offering side panels people may not purchase limited edition PS5's because a side panel is cheaper, can be changed, so you may be more happy with that rather than either buying another console and selling or keeping your original, or waiting for a special edition.

 

What DBrand was offering is much better for the consumer but the problem is they should have sought out the permission to do it first.

[Beerzerker]

Interesting thoughts about it.
I believe I do know at least one angle Sony is working on their part and it's not even a product angle, more like a cultural one.
Culturally the Japanese value "Respect" and DBrand by trolling Sony with what they were doing in their advertising caused Sony to act or to "Save Face".

In the end, the guys that own and run Sony are still Japanese and don't think respect and honor aren't still kept in mind - it is for them.
This is why Sony sometimes does things that doesn't seem to make any sense, even to the point of taking repeated losing legal actions that always results in the same exact outcome for the same exact reason(s).

One good example many of you probrably know about has to do with the SAO Abridged series done by "Something Witty Entertainment".
After each episode they made and released, Sony would challenge it and try to get it Perma-banned and they lost EVERYTIME.
It was always the same ruling in SWE's favor for the same reason(s) but since Sony must "Save Face" to their own (People), It not that they actually had to win.
To them it's just to keep their respect/honor if nothing else.

The thing they have about "Saving Face" can be a strong motivator to them - No doubt about it.

[LAwLz]

53 minutes ago, valdyrgramr said:

Apparently, after reading into it more that's not even the shapes Sony was bitching about.  But, companies, like igenix and quite a few car companies have used those shapes before Sony.  This is what Sony is bitching about https://dbrand.com/darkplates-cease-and-desist pages 3-6.  I'm pretty sure that's fair use considering that's a parody.  It's "oh no, you altered my basic shapes logo into something different that's covered by fair use."  And, DBrand came out with 2.0 versions+trolled Sony in the process.  

It still doesn't sound like you understand the situation since you keep going on about "basic shapes". Let me refer you to my previous post:

Spoiler

  

16 hours ago, LAwLz said:

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.

 

 

 

Also, how is this a "parody" exactly?

One important aspect of parody, in law, is that it mocks or ridicules for humorous effect. I don't see how you could get that from the original faceplates.

Also, I don't think parody applies to physical design and goods to be sold for profits in this regard. You can't "parody" a patented mounting system for example. The art you put on the faceplate might be a parody of something, but are you really going to argue that the way dBrand copied the patented design of the plastic clips was just a parody? Yeah, I find it totally hilarious how the mounting clips dBrand made perfectly aligns with the mounting holes in the PS5. Really funny joke they pulled there...

[Video Beagle]

2 hours ago, leadeater said:

Making vinyl wraps that go over something is quite a different matter and a lot harder to stop if a company doesn't like you doing it because it would be near impossible to argue it's infringing a design patent.  

 

By DBrand offering side panels people may not purchase limited edition PS5's because a side panel is cheaper, can be changed,

So this isn't DBrand making a sticker like they normally do, but an actual piece of plastic that snaps on?

[leadeater]

2 minutes ago, Video Beagle said:

So this isn't DBrand making a sticker like they normally do, but an actual piece of plastic that snaps on?

Yea, actual plastic side panels to replace the original ones. Awesome idea, I actually prefer that over a wrap because I'm horrible at applying them lol

 

Just kind of wish they went down a more official path, maybe they did though and got salty at being rejected, Who knows. I'm honestly not all the interested in this story and what's going on between the two companies. I just know that making side panels for a device like the PS5 without permission is a really bad idea, in particular if you blast this out in to the public domain as an open challenge to the company you are doing it to.

 

DBrand: "Wanna fight"

Sony: *throws punch*

DBrand: "Waaaaa, Mom Sony hit me!"

Sony: "But you asked for it?" 

[Video Beagle]

4 minutes ago, leadeater said:

Yea, actual plastic side panels to replace the original ones. Awesome idea, I actually prefer that over a wrap because I'm horrible at applying them lol

what a weird change in market for them...I have to guess they spent a good bit of money to expand into actual hardware for it to be worth tempting a company ending lawsuit... (I'm also real bad at applying those things).

[mr moose]

34 minutes ago, leadeater said:

Yea, actual plastic side panels to replace the original ones. Awesome idea, I actually prefer that over a wrap because I'm horrible at applying them lol

 

Just kind of wish they went down a more official path, maybe they did though and got salty at being rejected, Who knows. I'm honestly not all the interested in this story and what's going on between the two companies. I just know that making side panels for a device like the PS5 without permission is a really bad idea, in particular if you blast this out in to the public domain as an open challenge to the company you are doing it to.

 

DBrand: "Wanna fight"

Sony: *throws punch*

DBrand: "Waaaaa, Mom Sony hit me!"

Sony: "But you asked for it?" 

It will be interesting to see how this plays out.  I'm in the camp that Dbrand will win,  only on account that they aren't taking sales away from sony, in fact in order for their product to actually be usable you have to buy a sony product.  It's kinda akin to non genuine phone/laptop parts, printer ink cartridges, etc.      I understand the argument about reduced custom PS5 sales, however applying a 3rd party cover to a stock PS5 doesn't make it an official Sony limited edition.  If being limited edition makes the value then that value is in the fact it is a genuine LE PS5 and not a dbranded one.

 

Although I agree they shouldn't be provoking, that's just childish and seems very stupid.  (unless their lawyers know something we don't and its a very calculated gamble on some part of patent law).

[leadeater]

1 minute ago, mr moose said:

If being limited edition makes the value then that value is in the fact it is a genuine LE PS5 and not a dbranded one.

Typically the value is in the cross licenses IP, like Kingdom Hearts or w/e. Those that buy it are buying it because it's a Kingdom Hearts edition.

 

 

[Arika]

2 minutes ago, leadeater said:

Those that buy it are buying it because it's a Kingdom Hearts edition.

At the moment, they would buy it just because it's in stock.

 

Still haven't seen a PS5 or XBSX in stock anywhere in Australia since they were first released. Not that i'm looking to get one, but they are super rare

[leadeater]

3 minutes ago, Arika S said:

At the moment, they would buy it just because it's in stock.

 

Still haven't seen a PS5 or XBSX in stock anywhere in Australia since they were first released. Not that i'm looking to get one, but they are super rare

EB Games here you have to order in store, no online orders, and then you get added to their queue. It's generally around 2 months once you've placed your order to getting it and I believe you have to pay a fair decent amount up front as well.

 

There is no stock, everything is pre-sold and that's across more than just EB Games.

[mr moose]

1 hour ago, leadeater said:

EB Games here you have to order in store, no online orders, and then you get added to their queue. It's generally around 2 months once you've placed your order to getting it and I believe you have to pay a fair decent amount up front as well.

 

There is no stock, everything is pre-sold and that's across more than just EB Games.

My bil worked in an EB store for a while,  he's a console and VG nut.  To ensure he got everything that was release he used to buy it and pay for it as soon as orders were able to be taken,  this ensured he got the first unit shipped to that store (group of stores).    

[pas008]

this just got more interesting with the newer versions

can a pc case be patented(caselabs)? can companies make parts for certain pc cases and not need legal backlash

 

 

[tikker]

8 hours ago, Video Beagle said:

what a weird change in market for them...I have to guess they spent a good bit of money to expand into actual hardware for it to be worth tempting a company ending lawsuit... (I'm also real bad at applying those things).

They did skins, but stopped because they apparently were a major pain to apply to such a large oddly shaped thing (and didn't cover all the edges that would still show white through):

 

(is it just me or is the Reddit embed broken?)

[Blademaster91]

On 10/17/2021 at 7:15 PM, InstantNewt said:

TBH I think there are 2 reasons Sony is going after them.
 

1) Dbrand marketing poked the bear with their “Go ahead, sue us” comment.

 

2) Since Dbrand isn’t a Chinese shell company that can disappear and reappear under a new name, they’re a prime target for Sony. Canada actually cares about IP laws, same with the US. Dbrand receiving a C&D is pretty much Sony making it well known that they won’t be bullied by a smaller company with their own IP. 
 

IMO, Sony isn’t being unreasonable here. Dbrand started all of this and Sony is making it well known they aren’t in the mood to play. Sure it’s a cosmetic thing and doesn’t really hurt Sony yet, but this is a well deserved reality check for the loudmouth idiots over at Dbrand. 

Yeah dbrand definitely did provoke Sony into sending a C&D order, maybe Sony would've left dbrand alone if they didn't have the stupid childish attitude basically asking to get sued.

Sony could also be providing themselves legal protection if they decide to sell a black version of the PS5, although not sure how I feel about Sony threatening a lawsuit when they don't offer a PS5 with black side plates, its kind of like a car manufacturer suing a third party manufacturer for replacement parts the car manufacturer isn't selling.

 

[Master Delta Chief]

As always I find it hysterical that people defend a corporation for their 'IP', but this is just dumb asf. Sony is acting like such a bitch for not allowing other companies to create faceplate customization for their consoles. Whether it's for legal reasons like patents and stuff, It should still be regarded as something absurd and unacceptable. 

 

[Derangel]

10 hours ago, Master Delta Chief said:

As always I find it hysterical that people defend a corporation for their 'IP', but this is just dumb asf. Sony is acting like such a bitch for not allowing other companies to create faceplate customization for their consoles. Whether it's for legal reasons like patents and stuff, It should still be regarded as something absurd and unacceptable. 

 

 

Discussing the legality of something is not defending a corporation. I don’t think anyone in this thread thinks what Sony is doing isn’t shitty, but that’s different than talking about the validity of their patent or the C&D letter. Also, DBrand aren’t entirely blameless in this either.

[Video Beagle]

Why would it matter who's IP it is if it's being violated? Laws only matter if you like the victim?

[Master Delta Chief]

1 hour ago, Video Beagle said:

Why would it matter who's IP it is if it's being violated?

Yeah, why would it matter? Certain IP types are simply old-fashioned and create bullshit situations such as these. I see nothing wrong with what DBrand did or the other company mentioned in the article. DBrand was edgy in the way they wanted to bring attention to it but it just shows how annoying patents are. Who gives a fuck if someone just creates a faceplate or any other kind of customization and then sells it. 

[mr moose]

2 hours ago, Video Beagle said:

Why would it matter who's IP it is if it's being violated? Laws only matter if you like the victim?

IP along with CR is a double edged sword,  It is both very necessary for development and economic growth but at the same time can be weaponized unfairly.  So depending on who owns the IP and what they are doing with it changes dramatically whether or not people find it morally absurd or fair practice.

[wanderingfool2]

8 hours ago, Master Delta Chief said:

Certain IP types are simply old-fashioned and create bullshit situations such as these.

Well I think an issue is that it's not necessarily the old fashion that creates the issue...it's that new technology came out and people began claiming that patents cover them (and the legislators didn't bother doing anything to update it).  An example being software patents, during the major birth of software they hardly ever got patented until a few companies did it (and in an effort to protect themselves the other companies stepped in and did a similar thing).  Old rules yes, but the new techniques of claiming they are novel.

 

Patents were originally meant to protect novel ideas, and representations...and it still has it's purpose I think.

[Junaid Hameed]

Its  Back!

A new design. 2.0 with vents.

Darkplates 2.0 » Special Edition Drop » dbrand

 

[LAwLz]

1 hour ago, valdyrgramr said:

First off the, parody is on page 4 of the cease and desist letter. 

Where? Are you talking about how dBrand changed the design of the shapes? If you count that as parody then I guess it is "mentioned", albeit the word "parody" does not seem to appear anywhere in the C&D letter. But it seems like you still don't understand the issues here. You are once again going back to "it's just symbols, you can't sue them over symbols" when the actual issue is four different things (one of which are the symbols) that combined becomes an issue.

Again, Apple didn't sue Samsung over rounded corners. They sued them over rounded corners IN ADDITION to several other things. Same thing here. It's not the symbols in and of themselves that are the issue. It's the symbols in addition to three other points, and you have to factor in all of them when scrutinizing the C&D.

As long as you keep going back to a single point that's only 25% of the C&D then it's impossible to reason with you. You have to look at the bigger picture, not the small details.

 

 

 

1 hour ago, valdyrgramr said:

Secondly, can you prove those mounting hole locations are exclusive to the PS5?

That's not how it works...

It's the one breaking the patent that has to provide prior art as a defense, not the other way around. It's on dBrand (or you) to prove that prior art exists. Do you not see how ridiculous it would be if anyone who asked for a patent had to prove that there was no prior art? Prior art is a defense you as the defendant can use. It's not up to Sony to prove nobody else have made the same design. It's easy to prove that something has been done before. It is near impossible to prove something hasn't been done before. That's why the law is the way it is. But I find your entire argument and attitude here ridiculous. The whole "prove that it isn't or else I'll keep doing it" attitude is childish.

 

 

 

1 hour ago, valdyrgramr said:

Thirdly, Sony themselves didn't even prove this they made several allegations in the cease and desist without actually providing a solid case themselves.

What do you mean?

 

 

1 hour ago, valdyrgramr said:

I do love how in the cease and desist letter they say the US when DBrand is a Canadian company. 

Again, what do you mean? It feels like you're trying to nitpick some words in order to invalidate the claims Sony made. Again, you're very focused on details when design patents are almost always about the bigger picture stuff.

Also, the US is only mentioned a handful of times and when it is mentioned, it is mentioned in addition to other countries such as Canada. For example they say something along the lines of "in the US, this violates law number XYZ. In Canada it violates the law ABC. We own trademarks in the US and the rest of the world".

 

I am not sure why you object to Sony mentioning the US when dBrand sell their products in the US, and it is only mentioned alongside Canada.

You have to follow the laws in the country you sell products in. If you sell products to the US then you have to follow US laws, regardless of where your company is located. 

 

I get the impression that you think you found some "gotcha" when in reality it's just sloppy reading and a fundamental misunderstanding of how the law works.

This letter was not written by clueless people. They know what they are doing.

 

 

1 hour ago, valdyrgramr said:

There's also a lot of speculation from Sony's side, "likely to lead consumers to believe that dbrand's products are liscened by or otherwise approved by Sony."  Uh, that's on the consumer, not DBrand, Sony just seems to stretching here. 

No, it really is on dBrand if that is the case. What you're doing here is victim blaming. "It's the buyers fault they got confused" does not hold up in court. There is a part of trademark cases that talks about "likelihood of confusion". Basically, if a trademark is violated or not heavily depends on whether or not "the average consumer" could potentially confuse a product from one company with the product from another company. That is to say, if the average consumer were to see the dBrand product, what is the risk of them mistakenly thinking it is a product from Sony. 

 

 

 

1 hour ago, valdyrgramr said:

"Second, dbrand is selling skins for SIE devices that feature the Playstation Family Mark.  Your company may not sell products that bear unauthorized depictions of our client's Playstation Marks."-This one is a bit of a stretch as it's not "exactly" the logo in the sense that Sony uses it. 

How is it a stretch? The dBrand skin has a exact copy of the PS logo on it. 

Are you really trying to argue that because the logo isn't in the exact same place, it is okay to use it? Because if that's your argument then YOU are the one stretching things to the extreme, not Sony.

 

 

1 hour ago, valdyrgramr said:

At the same time, Sony is acting above the law on pages 3-4 of the C&D by stating, "Third, dbrand has created its own version of SIE's famous Playstation Shapes Logo and has displayed this design as a stand-alone logo on it's website, as an ornamental design, and as an ambossed feature of it's faceplate product.  These uses are shown here:"  If you're too lazy to go to page 4, "oh how dare you turn the x, triangle, circle, and square into different symbols like a robot, a skull and cross bones, a radioactive symbol, and oh no the all-seeing eye and pyramid!   They're an apocalyptic spon on our logo!  How dare you!"  That's fair use, sorry.  You don't have to find it funny, but ya that's fair use in Canada, which Sony says is not legal.

Sigh... Once again back to the small details and missing the bigger picture. The issue is not the logos in a vacuum. The issue is the logos in addition to the other 3 points Sony laid out.

If I took those same logos (the dBrand designed pyramid, circle, skull and cube) and put them on a pair of socks or whatever, and called them "funny socks", then Sony would not have any case again me. However, since dBrand put those symbols on a faceplate that in and of itself (not the texture, but the faceplate itself) is a copy of Sony's patented design, in addition to dBrand putting the Playstation logo on their products, and calls the products things like "Sony PS5 Skins" (using Sony's brand name and product names in dBrand's product names) it becomes a big deal to Sony.

It's all these things combined. Sony is not making 4 separate lawsuits for each individual issue they have. They are threatening one lawsuit because of the 4 issues in combination.

 

 

1 hour ago, valdyrgramr said:

I feel like neither of you even bothered to read the C&D. 

I did, and I did it long before you did. See this post. 

 

 

1 hour ago, valdyrgramr said:

Sony is saying you can't even parody their logo here.

How is putting the mounting brackets in the exact same spots a "parody"?

How is putting a carbon copy of the PS logo, without any modifications to it at all, a "parody"?

You keep going back to "but the icons on the texture is different so it's a parody" when me and several other people have repeatedly tried to tell you it is not the icons in a vacuum that are the issues. For crying out loud people are making fun of how dense you are and are trying to explain the issue but you just don't get it.

Try and forget about the icons for 1 second and look at the bigger picture. Please.

 

 

 

1 hour ago, valdyrgramr said:

On top of that, dbrand also never claimed any affliation with Sony.

That does not matter. I am not allowed to sell t-shirts with Mickey Mouse on them either, even if I "never claim any affiliation with Disney". 

 

 

1 hour ago, valdyrgramr said:

And again, this won't ever go to court with how childish both sides are acting.

How is Sony acting childish exactly?

dBrand: Hey Sony, we copied your product and is selling it! Go ahead, sue us!

Sony (in a private message to dBrand): dBrand, please stop selling that. We might actually sue you if you don't.

dBrand and you: Baww look at how horrible Sony are! They are acting like children! Fuck Sony! Look at what they said to us!

 

 

I think Sony has been very mature in handling all of this. The only ones acting like children here is dBrand. Or well, edgy teen might be a more suitable word to describe them.

[Sauron]

Aside from whether this is technically patent infringement or not, I wonder why Sony would care - you still need to own a PS5 to use these, do you not?

 

...does Sony plan on selling their own colored plates or black PS5s in the near future?

[leadeater]

25 minutes ago, LAwLz said:

No, it really is on dBrand if that is the case. What you're doing here is victim blaming. "It's the buyers fault they got confused" does not hold up in court. There is a part of trademark cases that talks about "likelihood of confusion". Basically, if a trademark is violated or not heavily depends on whether or not "the average consumer" could potentially confuse a product from one company with the product from another company. That is to say, if the average consumer were to see the dBrand product, what is the risk of them mistakenly thinking it is a product from Sony. 

This is pretty well the core of why Trademarks exist, so consumers don't get confused and other companies don't try and play off another company and pretend or obscure that they are not actually the company you think they are.

 

Imagine the chaos if a slightly different "tick" were allowed to be used by other brands on shoes. Such is why Trademark law applies here not something else like Patent law over the design of the "tick".

 

Also Trademark isn't just about the consumer buying the item, someone buying the DBrand Darkplate realistically is not confused, its about every consumer and who might see that product and not realize who it's actually from. Consumers might think that changeable side panels is an official Sony offering a feature of the PS5, DBrand isn't exactly as widely known as Sony and Playstation are. 

[LAwLz]

7 minutes ago, valdyrgramr said:

It's art, it's up to interpretation.

Is it though? I mean, I guess you could argue that it's up for interpretation, but that does not mean we can just wave our hands and go "it doesn't matter".

Would Pepsi copying the look of a Coca Cola bottle and selling it be "art and up for interpretation"?

Would me selling a Mickey Mouse t-shirt be "art and up for interpretation"?

 

 

15 minutes ago, valdyrgramr said:

If DBrand argues that it is a parody, which they are, then it is fair use.

That's not how fair use works... Holy crap it is amazing how many things you get incorrect in this thread. You clearly are just saying things you think are true without even a basic understanding of how it works. 

1) You can't just say "it's parody so it's fair use". Just because the defendant says it was intended as fair use does not automatically make it fair use.

2) Some of the issues raised by Sony are not copyright infringements, it's patent infringements. Fair use does not apply to patents.

3) Fair use is a defense. That means that you can argue fair use if you are being sued, but you can not argue fair use to avoid being sued. If this went to court then dBrand could make a case that what they did was meant as fair use (which would be a pretty tough case to make if you ask me), but they can not say "fair use" in order to avoid going to court.

 

 

18 minutes ago, valdyrgramr said:

The reason the logo is more of a stretch is because it's not exactly the traditional logo and an outline of the logo.

Ehm, what? What logo are you talking about? The logo on their skins looks exactly like the PS logo to me.

This is the logo dBrand put on one or more of their products:

This is the first result that appears when I searched for "PS logo":

 

I don't think you can make a case that they are different... And no, inverting the black and white is not fair use. I shouldn't have to say that but I do it just in case you try to make that argument.

 

21 minutes ago, valdyrgramr said:

I never said that mounting brackets were a parody, but you have proven that you can't read.

But you kept saying "it's a parody!" when I brought up the mounting brackets. Were you just avoiding that part because you didn't want to address it maybe?

 

 

23 minutes ago, valdyrgramr said:

The parody was of their logo!

Which logo exactly? The one I posted above? I don't see how that's a parody when they just copied it.

It's not a parody unless it's done for a comedic effect or ridicule. Do you seriously think that dBrand invented the colors of the PS logo in an attempt to make people laugh? If you don't think they did it in order to make people laugh, then you don't think it's a parody.

I don't think anything about their PS skins or faceplates are funny, and I really don't see how anything can interpret it as such. Cool? Sure. Their marketing regarding it? Some people might find it funny. The products themselves? Clearly not meant to be comical, and even if they were there are still the other issues Sony brought up.

 

 

26 minutes ago, valdyrgramr said:

Can Sony even prove that they were the ones who came up with such a mounting system?

Again, that's not how the legal system works.

It is not Sony's responsibility to prove that nobody else has done things in the same way they have a patent and copyright for. It's the defendants responsibility to prove that prior art exists. Not sure why you keep repeating this when I have already told you things don't work the way you think they do. And we should be very thankful it doesn't work the way you describe/want.