A Replicant of a Suit: Roy Batty v. Google?
Google, as you may have noticed, is running to market with its representative in the phone wars, the Nexus One. However, they may hit a small bump in the road on their way to domination of the tech universe: the estate of cult sci-fi author, Philip K. Dick. Dick is perhaps best known for his story, Do Androids Dream of Electric Sheep, which was the basis for the hit movie, Blade Runner. The heirs of Philip K. Dick think the techies over at Google might be Dick fans, because their Nexus One phone, running on an "Android" OS, hits a little too close to the Nexus 6 rogue android (or replicant) in Dick's story, at least according to Dick's daughter and heir, Isa Dick Hackett.
While at least one news report has suggested that Hackett will be seeking to bring a case for trademark infringement against Google, that may not be quite the whole story. Yes, Hackett, head of Electric Shepherd Productions, which handles film adaptations and other intellectual property issues for her father's estate, is quite upset over the usurpation of her father's characters. She is spiting a little fire at Google who, as she says, "take[s] first and then deals with the fallout later."
A close look at the facts, however, shows that the estate might have more success with a copyright infringement suit than one based on trademarks.
To win on a trademark infringement claim, Dick's heirs would need to prove they own a valid trademark, and that it was infringed by Google.
It does not appear, from a cursory examination, that Dick nor his heirs have registered "Nexus" as a trademark in the US. They could, however hold a common law trademark in the term if they have made proper use of it as the indicator of the source of goods or services.
If there were a valid trademark, to decide whether Google infringed, a court would compare the two marks and their respective uses, with questions including (but not limited to):
- are they used on competing goods or services?
- what is the strength of the original mark?
- is there actual confusion of the two competing marks by the consumer? and
- what was the intent of the defendant?
Dick's heirs could also claim trademark dilution, but seeing that as of yet we've seen scant evidence of a valid trademark to be diluted, let's save that discussion for another day.
The estate of the author might prefer to focus more on the fact that the use of the name Nexus One, especially when linked to an OS named Android, can strongly bring to mind the characters in Dick's work. According to the World Intellectual Property Association, a "character could be protected under copyright if it is an original expression of an author." And who is more original than Philip K. Dick?
According to the New York Times, Google filed an application in December with the USPTO to register the name Nexus One as a trademark. If they want to proceed with the claim, they may want to take a page out of Verizon's playbook. Verizon secured a licensing agreement from George Lucas to use the name "Droid" for their new Smartphone. Because really, who wants to tick off R2D2? (Actually, it was more likley because George Lucas' Lucasfilm Ltd. filed to register "Droid" as a trademark covering cell phones and other wireless devices.)
Though Dick's heirs may have a weaker claim of trademark rights, licensing the name could have gained the approval, and the dollars, of science fiction lovers in every galaxy.
- Philip K. Dick estate says Google violated trademark of Nexus (Wired)
- Is the Google Phone an Unauthorized Replicant? (NY Times)
- Is a character protected by copyright? (WIPO)
- Intellectual Property: Copyright (FindLaw)
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