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

[leadeater]

32 minutes ago, valdyrgramr said:

No self respecting judge would allow such a childish back and forth in their courtroom.

I don't know about that, there's been plenty of stupid crap go through. 

 

Quote

Pearson v. Chung, also known as the "$54 million pants" case, is a civil case filed in 2005 by Judge Roy L. Pearson. Pearson was, at the time, an administrative law judge in the District of Columbia.

 

Pearson filed suit against the owners of Custom Cleaners in Washington, D.C.—Soo, Jin Nam and Ki Y. Chung—for allegedly losing his pants. Insisting that Custom Cleaners had failed to fulfil the "satisfaction guaranteed" by a sign in the store, Pearson requested $67 million for inconvenience, mental anguish, and attorney's fees. He also represented himself. The Chungs presented three settlement offers in the amounts of $3000, $4600, and $12,000, which were rejected by Pearson. During trial, Pearson broke down in tears while detailing the frustration caused by losing his pants.

 

Pearson lost the case and subsequent appeal. In the appeal, he argued that the presiding judge had failed to address his legal claims. As a result of the trial, a panel recommended that Pearson not be offered the standard ten year appointment; although still a member of the bar, he no longer serves as a judge. The Chungs made a motion to recover their legal fees, but withdrew it following the conclusion of a successful fundraising campaign.

 

The case drew international attention when it went to trial in 2007, and has been held as an example of frivolous litigation and the need for tort reform in the United States. Pearson was widely ridiculed in the press, and was given the nickname "Judge Fancy Pants".

 

 

Quote

DC Board of Professional Responsibility issued a 90-day suspension from legal practice against Pearson for engaging in frivolous litigation and thereby interfering with the administration of justice. The District of Columbia Court of Appeals upheld the suspension in June 2020, observing that Pearson had continued his intransigent behavior even during the misconduct proceedings. Pearson retained his DC bar membership.[26]

https://en.wikipedia.org/wiki/Pearson_v._Chung

 

One of my more favorite examples heh. This one for going in to Appeals Court as well. The disciplinary action is icing on the cake.

 

Sadly the courts isn't exactly as higher standards as we might think they are, not in this way.

 

11 minutes ago, valdyrgramr said:

I mean you'd have to be illiterate and lack common sense, or fall for marketing, to be confused by that. 

No because you can see the product outside of DBrand's website. You could see images online of it, or even physical form with your eyes, and not know the origin of it, you could see articles about it or at least headlines and miss that it's DBrand's not Sony/Playstation also compounded by a situation of having never heard of DBrand before so have no idea DBrand is a company.

 

You missed the whole part about this applying outside of consumers buying the product as I explained in my post.

[LAwLz]

35 minutes ago, valdyrgramr said:

For the other one that's up for the lawyers to decide.  Contradicting the law and playing around with the legal system is far from mature.

So do I understand you correctly.

 

You think that dBrand broke the law and are also acting immature by saying things like "go ahead and sue us". So you think they are acting like children.

But you also say that Sony "act like children" because they sent a letter to dBrand telling them to stop breaking the law?

 

And you also think that "no self-respecting judge" would pick this case up even though you yourself say that dBrand has broken the law? How are Sony being immature/childish exactly? I don't think sending a letter in private asking someone to stop breaking the law is immature.

[leadeater]

16 minutes ago, LAwLz said:

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.

As you said Fair Use only applies to Copyright. there is no Fair Use in the application of Trademark Law or Patent Law as both of these offer either total exclusivity or partial (i.e. within market).

 

Additionally Fair Use is a defense in lawsuit that can only be tested in court. Something is legally speaking only Fair Use after it has gone to court and been found to be so otherwise it's an untested claim of defense. Copyright claims have an assertion of being correct and by making a claim you are stating your copyright has been violated.

 

Fair Use is also very hard defense to win outside of commentary and news reporting etc. Specific leeway is given to these and because DBrand is not doing this such a benefit would not be awarded to them, even though Fair Use is not applicable here really, it's not a defense I would go with here.

 

16 minutes ago, LAwLz said:

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

Are there any Copyright Claims part of this at all? I've not actually read the C&D but that would seem odd to me, Trademark and Patent on the face of it are the only ones that apply. I don't think Sony is trying to claim the side panels are art work, literature or video so I don't know how it would apply here?

[LAwLz]

Just now, valdyrgramr said:

I already answered that.  It's not my fault you didn't read.  Sony is overplaying their victim card here through their lawyers, trying to contradict a few laws to get their way, and played into being provoked like a child.  I'm not supporting either side here, I'm saying fuck both of them.

How exactly are they overplaying the "victim card"? You yourself said that dBrand broke the law so clearly they are the victim. By the way, the document dBrand published were sent to them in private. So I don't see how you think Sony are trying to pretend to be a victim. Sony just asked dBrand to stop selling the products you yourself agree breaks the law, and they did so in a private letter to dBrand.

 

What laws are they trying to contradict? Please don't say "fair use" or "parody" because it is abundantly clear that you do not understand those laws. Also, you yourself agree that dBrand broke the law. 

 

How were they "provoked like a child"? Are you seriously arguing that if you say "go ahead, sue us" and someone sues you, then the case should get thrown out of court because the person suing you is acting "childish"? If I start hitting and kicking you and say "come up, hit me", would it really be immature to punch back? And if you did, do you really think a judge would go "how childish of you to get provoked. You're both acting like children and I am throwing this case out!"? Of course not.

[Gamer Schnitzel]

I find it honestly hilarious how you guys are all siding with Dbrand simply because you guys are simp fanboys who truly tell yourself that Dbrand are the reincarnation of Jesus Christ and their motives is to make the world a better place.

 

Dbrand is nothing more than a leech who sold those pieces of plastic for a significant mark-up to make a very nice amount of profit and the reason they are whining is because those plates were popular and selling very well, not because they are sad they cannot offer customization to their "beloved" customers.

They are literally children who told Sony to sue them and to top it off their founder is a kiddo who likes to show off with his luxury car which he can afford because he leeches of successful products and makes a... "skin" for them made out of plastic by factories he does not even own.

 

Try to get into your heads that Sony made this product and they decide if they want there to be customization. If YOU made a successful product, and believe me, you never will, you would also be pretty annoyed that another company is making a shit ton of money selling accessories for your product while they pretend they are doing this for the good of the customer which is why they "accidentally" mentioned right to repair there. You think if anyone would start making really good money off the LTT brand Linus would not be all over that? Really? You think?

[leadeater]

3 minutes ago, Gamer Schnitzel said:

If YOU made a successful product, and believe me, you never will

Hey that's not fair! I mean you're right but damn

[LAwLz]

4 minutes ago, leadeater said:

Are there any Copyright Claims part of this at all? I've not actually read the C&D but that would seem odd to me, Trademark and Patent on the face of it are the only ones that apply. I don't think Sony is trying to claim the side panels are art work, literature or video so I don't know how it would apply here?

Hm, I am not sure the legal differences between copyright and trademark but the C&D mentions trademark infringement, copyright infringement and patent violations.

 

Sony specifies that the "PlayStation Family Mark is protected by copyright". Not sure exactly what the "PlayStation Family Mark" is though, but it might be this they are referring to:  

28 minutes ago, LAwLz said:

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":

 

Not sure if that falls under trademark violation or copyright violation.

 

[leadeater]

1 minute ago, LAwLz said:

Not sure if that falls under trademark violation or copyright violation.

I guess it's technically both since the logo itself is an artwork and that artwork has been trademarked?

[Dracarris]

21 minutes ago, Gamer Schnitzel said:

I find it honestly hilarious how you guys are all siding with Dbrand simply because you guys are simp fanboys who truly tell yourself that Dbrand are the reincarnation of Jesus Christ and their motives is to make the world a better place.

If you look a bit closelier at this thread, you can spot a lot of people that apparently have been touched inappropriately by the sheer existence of dbrand.

21 minutes ago, Gamer Schnitzel said:

They are literally children

Pretty sure you have to be 18+ to run a business in CA.

21 minutes ago, Gamer Schnitzel said:

he leeches of successful products and makes a... "skin" for them made out of plastic

Hmm, so send every company that makes skins, cases, protective covers, gorilla glass or any other accessory for successful phones to hell?

21 minutes ago, Gamer Schnitzel said:

by factories he does not even own.

Hm, what kind of bonk argument is that? LMG does not own the companies that produce the clothing, cable ties, desk pads and whatnot for them, except for very few companies none own the silicon foundries that produce chips for them, big brands don't own Foxconn that assemble their products.. It is totally normal to send your designs to other companies for production, absolute industry standard.

[leadeater]

3 minutes ago, valdyrgramr said:

It's fair use because they altered the logo in a comedic way that even Sony admitted to in the C&D.

While that is a defense for copyright aspect it is not for trademark, trademark has no such defense at all for that.

 

What Sony is doing is just chucking every possible violation at them in a rather blunt "Hey, just stop". Yea it's a typical legal strong arm move but if you want someone to stop something trying every possible legal challenge is a rather good way to go about it, something will stick, probably.

[Blademaster91]

8 minutes ago, valdyrgramr said:

Using the outline of a logo is a bit harder to argue in court than outright using the logo. 

I'm not sure where using the outline of a logo falls on copyright or trademark, but it's still the logo. And dbrand revised their darkplates with fan grille cutouts to generate some hype from their fans, but I think that seems like dbrand realized they screwed up and broke the law with their original side panels.

[leadeater]

7 minutes ago, valdyrgramr said:

I don't disagree on the last part, but on the first part I think it does in Canada.

That would only matter if they were only trading in Canada, which they are not.

 

I know you can have similar trademarks in different industries and that can be successfully defended, in a way you could see that as fair use but it's actually not. It's a different legal argument that revolves around the purpose of trademark law

 

Looking at Canada specifically then DBrand very much fails that bar too, I wouldn't even call it close. Probably why they changed the design

 

Quote

To qualify as "fair use", the third party must use the trademark accurately, in good faith and only to the extent necessary. The third party must also take care to ensure that the manner in which they use the trademark does not suggest any endorsement by the trademark owner. In other words, "fair use" of a trademark does not seek to trade on the value of the reputation or goodwill in the trademark. It is merely use of the trademark as a term of reference.

DBrand PS5 side panel is in the most literal way doing just that.

[wanderingfool2]

14 minutes ago, LAwLz said:

Hm, I am not sure the legal differences between copyright and trademark but the C&D mentions trademark infringement, copyright infringement and patent violations.

 

Sony specifies that the "PlayStation Family Mark is protected by copyright". Not sure exactly what the "PlayStation Family Mark" is though, but it might be this they are referring to:  

Not sure if that falls under trademark violation or copyright violation.

 

It would be both, but I think you would only be able to pursue one in court.  Anyways, suing for trademark is so much better...since if you can prove the act was willful (easy enough given dBrands marketing), the penalty awarded can be $2,000,000.  Plus if you win, you can ask for lawyers fees and asked to be awarded all the profits made.

 

 

 

15 minutes ago, valdyrgramr said:

It's fair use because they altered the logo in a comedic way that even Sony admitted to in the C&D.  Just because Sony was offened by it doesn't mean it's not a parody.  Thus, it is fair use.  Using the outline of a logo is a bit harder to argue in court than outright using the logo.   The problem with art is that unless you copy it the way the original artist did it can complicate the case, hence why I said the one on the PS4 Pro could go either way.

I'm against what Sony is doing, I think it is a strong arm type of tactic but at the same time everything mentioned in the C&D is valid.  I don't even think they were stretching the truth at all.  Legally Sony I think is in the right (people have already pointed it out to you that you have no clue what you are talking about referring to fair use in trademark infringement)

 

The major point I would like to say is stop with this fair use when referring to trademark.  Trademark fair use only really covers it for descriptive purposes (which in this case you can't apply since it's a symbol), and the other is when using reference to the object itself (which doesn't count here either).  Here read the use yourself https://en.wikipedia.org/wiki/Fair_use_(U.S._trademark_law)

 

2 minutes ago, valdyrgramr said:

Well, if they had used the filled in logo on the PS4 Pro that's an easier case for Sony.  Using a stencil basically has always been a much harder case to sell for both sides

The two bolded parts of the quote...uhm you are thinking about copyright law.  Trademark law is a whole lot more loose.  With trademark, if you show the "stencil" on a generic electronic product to 1000 gamers and say who made this and like 2% of them said Sony then that would be TM infringement because people can confuse who made/endorsed it.  In this case, if you ask people (who didn't know that dBrand made the sticker) I'm willing to bet you get a whole lot more people thinking it was a Sony product...and more importantly you could effectively convince people that it was a Sony product based on the logo.  So yea, Trademark is a lot more loose in terms of standards.

 

39 minutes ago, valdyrgramr said:

Just because Sony was offened by it doesn't mean it's not a parody

You have no clue what parody is in fair use defense (actually, it's something a bunch of people get wrong as well).  Parody in copyright you need to criticizing/critiquing the original copyright.  This is trademark though, dBrand clearly is using the "different" symbols to attempt circumvention and being able to use it on the product which is not a form of parody.

 

So to be clear, this is not parody and not fair use.  Legally, I think Sony is in the right...even if morally they are wrong (by intentionally preventing any side-panels even though they don't offer side panels)

[wanderingfool2]

39 minutes ago, valdyrgramr said:

Did you read what Sony's lawyers said

I in fact did read the Sony C&D.  You clearly lack an understanding though of trademark/copyright.  Trademark dilution is a thing, Kleenax got into an issue in that it can now be interchangeable with a tissue (so they've lost part of the trademark protections)...because guess what, if you decide not to pursue trademark infringement against companies that you know are committing infringement you lose a lot of power you have when wielding the trademark.  The fact that dBrand marketed it as so sue us mentality as well is something that Sony also wants to hit home with because it moves everything into the realm of willful infringement and that pretty much makes dBrand on the hook for a lot more if this goes to court and Sony wins (which they I can say 100% would win a large part of their case).

 

Also you are highly characterization what Sony has said, this is a standard C&D letter.  The fact is saying that it was an edgy version of your trademarked symbols is a valid argument, anything that associates with a trademark and how it's not "normal" Sony can use against dBrand.  To be clear, they aren't saying that it's because "their feelings are hurt" they are saying that it damages brand recognition, which guess what is exactly the type of case you want to build when pursuing trademark claims.  So please, read what @leadeater and @LAwLz and understand that what you are arguing is coming from a total lack of basic understanding of how trademarks are protected (and to an extent copyright claims and C&D letters)

 

Yes dBrand could  try arguing that it was transformative and parody, in a previous post I made mention that could be a defense, but looking at things more as a whole there is just too much other stuff going on to call it a parody.  It I think would be easy enough to show that dBrand only transformed the symbols to try skirting around potential lawsuits, which would make it pretty much void for trademark parody.

[Derangel]

You know, the funny they about all of this is DBrand might have been able to avoid Sony’s lawyers if they had slapped their name on the outside of the plate and didn’t do the stupid “sue us” marketing. The rest of their products don’t have a direct challenge other companies, only the Darkplates.

[Derangel]

1 hour ago, valdyrgramr said:

Doubtful, Sony has been sue happy for over a year.  They went after others too last fall.

The other company was doing the same thing as DBrand, minus the taunting and I believe the plates they wanted to make had no symbols on the inside. Regardless, it still ended up looking like an “official” product. DBrand would have had a leg to stand on here if their plates weren’t meant to look basically exactly like official replacements. The new ones might be enough, but they’re still acting like idiots with their marketing and that could end up biting them in the ass.

[linkboy]

1 hour ago, valdyrgramr said:

Doubtful, Sony has been sue happy for over a year.  They went after others too last fall.

 

Stuff like this isn't new for Sony.

 

They sued Bleem! over their Playstation emulator in the late 90s, Bleem! won the case on all accounts, but had to close up due to lack of funding related the the court case.

 

They also sued Lik-Sang in 2006 for buying PSPs from areas where they were available and selling them in the UK.

 

Sony, just like Nintendo, is protective of their brand. If dBrand was in violation of a Sony patent or copyright, Sony is well within their right to legally go after them.

[sub68]

On 10/17/2021 at 3:06 AM, Master Disaster said:

Sony obviously have some kind of proprietary plans for the PS5 faceplates involving licensing and more money for customers but holy hell. Bad move Sony.

I see it from the manufacturer.

Which sony did put in design patents for the shells.

The way dbrand has the plates exactly like the plates.

Yes sony has a patent its some where in the US patent office(currently looking for it)

Also Sony HASN'T open up the faceplate design.

 

[Derangel]

2 hours ago, valdyrgramr said:

Except the side panels are black and the ones on the ps5 are white.  I know I have one with the optical drive sitting next to me right now.

Color is irrelevant. People in the know, would know it’s not made by Sony. 99.99% of people would think it’s an official product when looking at it. There is some leeway for confusion in trademark law, but it is a VERY thin line.

[LAwLz]

18 minutes ago, valdyrgramr said:

You said they look the same.  If the official is white, and the non-official is black then it's kina obvious there's a difference that should matter.

Inverting the color is not enough for it to be classified as fair use, or different enough to not violate copyright or trademark. 

[leadeater]

38 minutes ago, valdyrgramr said:

You said they look the same.  If the official is white, and the non-official is black then it's kina obvious there's a difference that should matter.

Assuming of course every consumer knows they only come in white and Sony doesn't themselves offer any other colours. This requires some level of greater understanding of the official product and non-official products to avoid that type of confusion, lacking in either and then the potential for it greatly increases.

 

I think it's rather unfair to say every consumer should just implicitly know that the Sony PS5 only comes with white side panels and nothing else when encountering non-white side panel images.

[Gamer Schnitzel]

On 10/21/2021 at 4:21 PM, Dracarris said:

If you look a bit closelier at this thread, you can spot a lot of people that apparently have been touched inappropriately by the sheer existence of dbrand.

Pretty sure you have to be 18+ to run a business in CA.

Hmm, so send every company that makes skins, cases, protective covers, gorilla glass or any other accessory for successful phones to hell?

Hm, what kind of bonk argument is that? LMG does not own the companies that produce the clothing, cable ties, desk pads and whatnot for them, except for very few companies none own the silicon foundries that produce chips for them, big brands don't own Foxconn that assemble their products.. It is totally normal to send your designs to other companies for production, absolute industry standard.

Sony already sells the console at a loss and most people don't buy a second controller cause they're forever alone. Many people also buy their games when they're cheaper or second hand. Where do you want Sony to get their profit from?

Meanwhile Dbrand is making money off Sony's popularity and is selling a piece of plastic which costed them pennies for $50 each. How exactly is it fair that they profit from another product that another company spent a shit ton of money on to produce and sell to poor people like you at a loss?

Anyone who disagrees needs to burn their computer and go out into the real world because this is common sense and literally anyone who has had any real world experience, no not "working from home programmer", would agree instantly. Sony only delayed the release of their plates because they are a company and companies want to spread their income out over the year so they can hit each quarterly target and not cash in all at once in 1 quarter and then fail the remaining 3 and they have the right to do so.

[jagdtigger]

12 minutes ago, Gamer Schnitzel said:

How exactly is it fair that they profit from another product that another company spent a shit ton of money on to produce and sell to poor people like you at a loss?

So according to your twisted """logic""" i should also burn my phone because its in a protective case, has glass screen protector, and to top it off runs on unofficial sw? And the companies making them should be sued into oblivion for it? Yeah right..... /s

[Dracarris]

2 hours ago, Gamer Schnitzel said:

Sony already sells the console at a loss and most people don't buy a second controller cause they're forever alone. Many people also buy their games when they're cheaper or second hand. Where do you want Sony to get their profit from?

Meanwhile Dbrand is making money off Sony's popularity and is selling a piece of plastic which costed them pennies for $50 each. How exactly is it fair that they profit from another product that another company spent a shit ton of money on to produce and sell to poor people like you at a loss?

It's not dbrands fault that Sony has a retarded business model for what is essentially a locked down PC. Also, boohoo poor Sony for not making any money? Are you actually serious? That obviously is far from true.

 

It is an accessory for a popular product, period. Just as is the case for every phone protective cover, sold for 20$, produced for .50? My point about those stands. It's your good right to make accessories for whatever product there is on the market as long as you don't infringe any copyrights, patents or protected designs. This is up to debate here, nothing else.

 

If someone made a detachable dildo for the PS5 and it sold like sliced bread, well good for them and nothing wrong from a legal standpoint.

[wanderingfool2]

6 hours ago, valdyrgramr said:

Sony, created the PS yet failed to defend themselves in court when they sued over Bleem!

Bleem used a fair use defense, and it worked because the suit was regarding the copyright claim (and Bleem using it to compare).  Under both trademark and copyright, you are allowed using imagery to compare, so it's not the same as this case where dBrand copied 1:1 the design pretty much.

 

I'm not sure too many people are arguing that they agree with the fact that these kind of things should be patent-able, but the fact is it is and it does appear as though they have been granted a patent, at least in Canada.  It's not like it's just a simple shape either...it's contoured and the hooks are pretty unique.

 

dBrand copied that pretty much to the t...their hooks as well on the faceplate aren't just solid hooks that are compatible with Sony's it looks like they copied the hook design itself.  It's actually possible to go with a design without the cut outs as well (as Spawn Wave showed in a video a knock off that if you pause correctly you can see that it was the knock offs use a solid plastic design for the holders).  dBrand here has copied it pretty much exactly (and I am really beginning to think they took a high res 3d scan of it, and reproduced it with the modifications of robots etc).