Brief of Intellectual Property Law Professors as Amici Curiae in Support of Defendant-Appellee and Affirmance in Omega S.A. v. Costco Wholesale Corp.
42 Pages Posted: 12 Aug 2012
Date Written: July 25, 2012
Summary of Argument: Copyright is not an invitation for businesses to circumvent trademark law, much less to control the distribution of uncopyrightable, functional devices. Amici respectfully submit this brief to explain why Omega’s attempt to stop others from reselling lawfully purchased Omega watches is copyright misuse, as the district court correctly found. The only part of the watch in which Omega claims copyright protection is a tiny insignia engraved on the back of the watch. However, instead of limiting its copyright to the insignia — a merely incidental feature of the watch that Omega strategically tacked on — Omega seeks to leverage the insignia’s copyright to encompass the entire watch, which is functional and cannot be copyrighted. Omega’s leveraging its copyright for a token feature to restrict the entire watch’s redistribution conflicts with both trademark law’s pro-competition policy in allowing resale of lawfully purchased consumer goods and copyright law’s policy of leaving functional devices to patent law for protection. Omega’s conduct is misuse also because it circumvents Costco’s fair use of the incidental insignia.
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