Pass, fail, epic fail

I must admit: I hate the use of "fail" that's become so common. However, even I will concede that Failblog has identified trademark fail in response to Guinness World Record's complaint that Failblog used a screenshot containing Guinness trademarks to show an embarrassing entry from the Guinness website. So, who holds the world record in "worst trademark claims on the internet"?

Slate on NAD

Slate runs a very favorable piece on NAD, with lots of eye-catching quotes from Andrea Levine.

Nothing but blue skies: beverage case reinstated

Chavez v. Blue Sky Natural Beverage Co., 2009 WL 1956225 (9th Cir.)

A little over two years after I wrote about the district court decision, I bring you the appeal, reversing the dismissal of Chavez’s false advertising complaint. Defendant sells lots of beverages; in 2000, it bought the Blue Sky product line from a company that had been based in and operated from Santa Fe since 1980. Until 2006, Blue Sky containers allegedly contained the terms “SANTA FE, NEW MEXICO” or “SANTA FE, NM” and also “CANNED FOR THE BLUE SKY NATURAL BEVERAGE COMPANY SANTA FE, NM 87501” or “CANNED UNDER THE AUTHORITY OF BLUE SKY NATURAL BEVERAGE CO., SANTA FE, NM USA.” The trade dress also presented a “Southwestern look and feel,” including pictures of what appear to be the Sangre de Cristo mountains that border Santa Fe. The website also used the notation “Santa Fe, New Mexico, U.S.A.” and a phone number with a Santa Fe area code (forwarded to company headquarters in California).

Chavez brought a purported class action on behalf of consumers allegedly deceived by the geographic misrepresentations thus entailed. The district court dismissed the complaint on the ground that Chavez failed to adequately allege an injury-in-fact. The court of appeals concluded that Chavez had alleged some injury, albeit perhaps slight, in fact. First, he allegedly chose Blue Sky over other brands because he believed that it was New Mexican in origin. He allegedly lost money because he didn’t receive what he paid for. He alleged that he is a native New Mexican who bought Blue Sky to support a New Mexico company and to associate himself with a New Mexican product. Though this perhaps limites the extent of the putative class, it also supports his claim that he wouldn’t have paid the full price for Blue Sky, or wouldn’t have bought it at all, if not for the alleged misrepresentation.

The court refused to rule on Blue Sky’s alternate ground for affirmance, preemption by the FDCA, on the ground that the district court should be the first to address this important issue of apparent first impression.

Yellow Pages wars, in Spanish this time

Momento, Inc. v. Seccion Amarilla USA, 2009 WL 1974798 (N.D. Cal.)

Momento sued defendant SAUSA for copying Momento’s Spanish-language ads for use in its own Spanish directories. Momento owned both the individual ads and the design and layout of its directories. (As set forth in another order, Momento created advertisements for its Yellow Pages by “preparing text, taking photographs of client advertisers, translating text from English to Spanish, and designing the layout of advertisements, including selection of fonts and colors.”) SAUSA argued that it got nonexclusive licenses directly from the advertisers as part of its form contract with them, and that the Momento ads were works of joint authorship because they resulted from collaboration between SAUSA and the advertisers and incorporated preexisting elements. (Interesting business model: allegedly, SAUSA solicits customers by sending an “ad proof” that’s a scanned copy of a Momento ad, sometimes with font/color changes; customers are asked for permission to print the ad “as is” for free, or with corrections for a fee.)

Under the 9^th Circuit’s test for joint authorship, the court found, Momento is the sole owner of the ads. Momento’s contracts with its clients say that Momento’s artwork is its sole property; one client expressly sought permission to use a photo taken by Momento on its web page; and several clients submitted declarations that they never gave SAUSA permission to copy the Momento ads (not sure why this is relevant to ownership, but ok—in fact, of course, regardless of whether the ads are jointly authored, the contract could separately change the ownership).

So Momento showed likely success on the merits of the copyright infringement claim. It also alleged false advertising under California state law based on SAUSA’s sales pitch that its directories are “the first and only Spanish directory delivered to consumers in Northern California.” SAUSA argued that the parties have entirely different methods of delivering the directories, making the claim ambiguous at most. However, Momento’s was the first Spanish directory published in Northern California and thus “at least that part of the statement is false.” In the absence of evidence that consumers weren’t deceived, then, Momento therefore showed a likelihood of success on the merits. Now, in Lanham Act parlance, it probably is true that “delivered to consumers” is ambiguous—if a directory is published, but consumers need to purchase it or call to request it or pick it up at a grocery store, then it’s not “delivered to consumers” and that even seems likely to be material to potential advertisers, since a directory delivered to consumers is more likely to reach those consumers who aren’t proactively seeking a Spanish-language directory. However, California law doesn’t include the false/misleading distinction, so it was open to the court to find the statement likely to deceive consumers even without evidence of actual consumer deception.

Since this was a preliminary injunction motion, the court then turned to the issue of irreparable injury. The old 9^th Circuit rule that a presumption of irreparable harm applies in a copyright case can’t be applied automatically after eBay, however. So instead the court applied the general test: irreparable injury; remedies available at law inadequate; balance of hardships; public interest.

Momento argued that the harm to its investment and competitive position caused by SAUSA’s copying at least 30 Momento ads showed irreparable harm. SAUSA says it’s the largest publisher of Spanish Yellow Pages in the world, and Momento is a family-owned business, directly competing. The court found that the copying and false advertising had an adverse and irreparable effect on Momento. The court could fairly consider Momento’s competitive position where SAUSA “built its business” around Momento’s works.

SAUSA argued that Momento’s four-month delay before filing suit precluded a finding of irreparable harm. Momento, however, wrote to SAUSA before that and got a response from SAUSA’s counsel that it took IP rights very seriously and was investigating, and would cease any infringements found, requesting proof of Momento’s copyright registrations and Momento’s directories to investigate further. Then, several months passed. The court accepted Momento’s explanation that it didn’t sue until it had evidence that SAUSA hadn’t ceased infringing, which came only when a new directory was published; Momento sued about a month and a half after that.

The court ordered SAUSA to retrieve directories stored on pallets at distribution points, but did not require SAUSA to retrieve directories picked up by consumers, and enjoined further distribution. SAUSA had notice of the infringement contentions as of the first cease & desist letter, yet proceeded with production; the injunction created a hardship for SAUSA, but not an unreasonable one in light of its decision to keep printing.

Note: in an earlier order, Momento, Inc. v. Seccion Amarilla USA, 2009 WL 1974905 (N.D. Cal.), the court denied a TRO on the ground that the plaintiff hadn’t made the extraordinary showing required. Without notice to SAUSA, the court stated the standard for irreparable harm using the old 9^th Circuit presumption. Once there was notice and a hearing, the court had a chance to get more deeply into the law as well as the facts: a victory for the adversary process.

Hey look, a standing case I like

Diascience Corp. v. Blue Nile, Inc., 2009 WL 1938970 (S.D.N.Y.)

Plaintiff does business on the internet as Yehuda Diamond Company. It sells diamonds and diamond jewelry treated with a “proprietary clarity-enhancement process” that masks imperfections in its diamonds, and it alleges that it provides “clear and complete disclosure” of this process. Blue Nile sells colored gemstones and diamonds on the internet. Though Blue Nile’s diamonds are untreated, its colored gemstones are allegedly “enhanced” using undisclosed techniques (including oil filling, glass filling, and flux healing). Failure to disclose processes that each individual gemstone has undergone allegedly contravenes FTC regulations. This information is allegedly intentionally withheld from consumers, leading them to choose Blue Nile over Yehuda. Yehuda alleged that, because these enhancement techniques affect the value and care requirements of the gemstones, but aren’t visible to consumers, these deliberate omissions are likely to deceive consumers.

The crux of the matter: did Yehuda have standing? The court applied the Supreme Court’s most recent statement about the standard on a motion to dismiss: though a court must accept the complaint’s allegations as true, the plaintiff must state a facially plausible claim to relief, and a complaint can’t survive with only “threadbare recitals of a cause of action's elements, supported by mere conclusory statements.” Ashcroft v. Igbal, 556 U.S. ---- (2009).

In the Second Circuit, Lanham Act standing requires (1) a reasonable interest to be protected against false or misleading claims, and (2) a reasonable basis for believing that this interest is likely to be damaged by the false or misleading ads. For (1), a plaintiff must show commercial interests, direct pecuniary interests, or even a future potential for commercial or competitive injury. For (2) likely injury and a causal nexus to the false advertising is required. A presumption of harm is disfavored if there’s no comparative advertising and the parties’ products are not obviously in competition. The court agreed with Blue Nile that Yehuda was therefore required to make “a more substantial showing of injury and causation” to establish standing.

At this early stage, Yehuda’s allegations were sufficient. “Even with the requirement for a heightened showing of injury and causation, courts seldom dismiss Lanham Act claims without first permitting plaintiffs to conduct discovery and present evidence of competitive harm," in part due to the overlap between the showing necessary to establish standing and the proof required to succeed on the merits of a Lanham Act claim, i.e. a reasonable interest and a reasonable basis for believing that interest has been harmed. The court examined a few cases decided in defendants' favor on motions to dismiss, and found that they presented quite different circumstances: where, for example, there is no overlap between the parties’ consumers, making a causal nexus between false advertising and harm implausible, or where any harm would be contingent on future commercial activity a plaintiff failed to initiate.

The court couldn’t yet say that Blue Nile and Yehuda didn’t share consumers. Diamonds and colored gemstones are not necessarily substitutes, but it’s possible that the markets overlap sufficiently for Yehuda to show a commercial interest and a causal nexus between the false advertising and harm. Yehuda would thus be allowed discovery limited to the issue of standing, focusing on the causal nexus between the alleged false advertising and lost sales. The court noted in a footnote that standing could be shown by market studies.

For the same reasons, Yehuda’s state law claims survived. The court also refused to stay the case pending resolution of a case brought by Blue Nile against Yehuda in Washington state, because that case involved separate allegations of copyright infringement and false advertising against Yehuda.

Misled again, naturally

Mark McKenna pointed me to this depressing story, of which the worst is:

Adding to advocates' concerns, a new study shows wide confusion among American consumers about products aimed at the green market. Many mistakenly believe "natural" is a greener term than "organic."

"They felt organic was just a fancy way of saying expensive," said Suzanne Shelton, president and CEO of the Shelton Group, which conducted the survey and specializes in marketing sustainability to mainstream consumers. "They think 'natural' is regulated by the government but that organic isn't, and of course it's just the opposite."

The Shelton Group, interestingly enough, positions itself as a PR firm for "natural products manufacturers."

Dark & Stormy trademark claims

NYT story about a registered trademark for a cocktail made with a particular brand of rum (HT: Jeremy Sheff). As a review question, check the article for conformity with actual trademark law. Or wonder whether the registrant is engaged in naked licensing by giving everyone the recipe for Dark & Stormy cocktails, to be assembled by the bartender.

Franklin College v. Franklin University

Indiana's Franklin College sues Ohio's Franklin University now that Franklin U plans to open a campus in Indianapolis. A good case to teach about expanding into new territory with, perhaps. Also note the clocktower logos, one fairly traditional and the other sleek and modern. Are consumers likely to think one is an updated version of the other?

Organic labeling and its discontents

Washington Post story on the watering down of the USDA label. Money quote (quite literally):

Joe Smillie, a [National Organic Standards] board member, said he thinks that advocates for the most restrictive standards are unrealistic and are inhibiting the growth of organics.

"People are really hung up on regulations," said Smillie, who is also vice president of the certifying firm Quality Assurance International, which is involved in certifying 65 percent of organic products found on supermarket shelves. "I say, 'Let's find a way to bend that one, because it's not important.' . . . What are we selling? Are we selling health food? No. Consumers, they expect organic food to be growing in a greenhouse on Pluto. Hello? We live in a polluted world. It isn't pure. We are doing the best we can."

What consumers are likely to understand is a tough question, especially when the standards are complex. But "they think the food comes from a greenhouse on Pluto, therefore we can put plenty of synthetics in the food because they're misled anyway" has both normative and descriptive weaknesses, it seems to me.

Newspapers, user-generated content, and the cost disease

I was going to write something about Baumol's cost disease and its implications for Judge Posner's misguided proposal to ban linking/paraphrasing of newspaper stories, but then I found a good post explaining cost disease in the performing arts and applying it to newspapers, which also face greater constraints on increased productivity than other industries. (Though we can debate the extent to which tech allows more efficiency in reporting/editing/fact-checking etc., it doesn't seem as great as the extent to which tech allows Wal-Mart to decrease the price of paper clips.) If cost disease is the problem, then increased legal rights don't make much sense as a solution.

Interestingly, Wikipedia's article on cost disease points out that one of the solutions is increased provisioning of the good by volunteers or increased nonmonetary rewards. So we could see user-generated content, like cultural respect for journalism, as both cause and effect of the economic constraints under which newspapers operate.

If a book meets a book coming through the rye

A couple of thoughts about the Holden Caulfield decision:

The court’s insistence that a parody must criticize the original specifically seems inconsistent in spirit with the Second Circuit’s most recent Koons decision, which involved a finding of transformativeness when Koons copied images from fashion magazines. Koons claimed to be critiquing the genre and explicitly disclaimed interest in the particular image. (Calling the legs “anonymous,” Koons insisted that the legs were “a fact in the world.” “[T]hey are not anyone's legs in particular,” and thus he had the right to copy them to critique modern consumption-oriented culture.) Perhaps the differences in medium (image/art world/collage versus text/publishing/single work used) mattered to the court, but yesterday’s decision relies far too heavily on Justice Souter’s unfortunate use of “parody” to stand in for transformativeness. (There’s a Campbell footnote pointing out that satire can be fair use, but most subsequent cases ignore it.)

The court also rejects using The Catcher in the Rye to critique Salinger, because parody has to be targeted at the work and not at something associated with the work. Query: how would the Literal Total Eclipse of the Heart fare under this standard if the owner of the copyright in the musical work, as opposed to the owner of the copyright in the music video, brought suit? I think this question reveals the problem with limiting concepts of parody like this—works exist in context, and parody has to be able to embrace that context.

Relatedly, the court finds that the book doesn’t work as a critique because Holden’s depression and anomie were already part of the original text. This strikes me as a mistake of law –in Campbell and in Suntrust, the courts found in the originals the elements highlighted by the respective transformative uses.

Quoting myself:

In a passage quoted by the Supreme Court, Judge Nelson’s dissent from the court of appeals opinion argued that the parody

. . . reminds us that sexual congress with nameless streetwalkers is not necessarily the stuff of romance and is not necessarily without its consequences. The singers (there are several) have the same thing on their minds as did the lonely man with the nasal voice, but here there is no hint of wine and roses.

Note in particular how the opinion imputes the motivations of the narrators in the 2 Live Crew version to the narrator in the Orbison song. Because of the later song, we can recognize that Orbison's narrator has the “same thing”-- sex--on his mind as the later singers ….

And:

The Eleventh Circuit Court of Appeals held that Alice Randall's insertion of homosexuality, in the form of a gay Ashley Wilkes, into the world of Gone with the Wind was an important part of what made her book transformative. The court quoted Gone with the Wind's description of the Wilkes family as artistic and “queer,” a term already widely used to describe homosexuals when Mitchell wrote the novel, to show that a basis for Randall's changes was present in the original. … In other words, the court held that transformation consists of making clear or exaggerated what was opaque or limited in the original text.

The argument for transformativeness is that by showing Holden still whiny and useless in his dotage, the new book critiques the extent to which the original romanticized, or led readers to romanticize, his central characteristics: rather than being a sensitive youth on a significant journey, the passage of time reveals that Holden is merely a callow youth who grows into a callow man, calling into question a generation’s worship. The problem, that is, is the reader’s valuation of Holden’s characteristics – just as the problem in Gone With the Wind was the valuation of whiteness/heterosexuality/Southern nostalgia.

In fairness to the court’s opinion, the idea seems to be that Holden's immaturity was sufficiently apparent in the original already, and thus not “opaque or limited,” as I put it. But the fact that Holden became the hero for a certain segment of a generation suggests that it wasn't, in practice, apparent enough to avert all need for critique. A similar debate broke out over a fanvid based on Joss Whedon’s show Dollhouse: the fanvid presented Dollhouse as a show about rape, and half the commenters at the fansite Whedonesque thought that the fanvid didn’t say anything that the show itself hadn’t already said, because the show was clear that it’s based on rape—and the other half of the reactions were that the fanvid was unfair, because what happens in Dollhouse isn’t rape at all. There was very little recognition on either side that the fact that these two interpretations of the original existed in conflict indicated that the fanvid in fact had a critical message, intervening in a heated debate over interpretation.

Perhaps, like Marx’s history, literature always repeats itself—the first time as tragedy, the second time as farce. The question of this case is whether showing a tragic young man turned farcial in his old age, because he stayed still while the world moved around him, is sufficiently transformative to be commercialized. (Separately, I must note strong disagreement with the court’s idea, for which it gives no citation, that the ability to avoid licensing also works as an economic incentive to be taken into account in analyzing the fourth fair use factor, because the author’s knowledge that no one can add to his work—the moral right, that is—can induce him to create the work in the first place. There is simply no way to distinguish this concern for avoiding interpretation from concern for avoiding criticism/transformation, which we know is not to be taken into account in factor-four analysis.)

Privacy and risk

I’m reading Daniel Solove and Paul Schwartz’s text Privacy and the Media, which starts out with an overview of theories of privacy. I was struck by an excerpt from Fred Cate, Principles of Internet Privacy, 32 Conn. L. Rev. 877 (2000) (citations omitted):

Open information flows are not only essential to self-governance; they have also generated significant, practical benefits. The ready availability of personal information helps businesses “deliver the right products and services to the right customers, at the right time, more effectively and at lower cost,” Fred Smith, founder and President of the Competitive Enterprise Institute, has written. …

Federal Reserve Board Chairman Alan Greenspan has been perhaps the most articulate spokesperson for the extraordinary value of accessible personal information. In 1998, he wrote to Congressman Ed Markey (D-Mass.):

A critical component of our ever more finely hewn competitive market system has been the plethora of information on the characteristics of customers both businesses and individuals. Such information has enabled producers and marketers to fine tune production schedules to the ever greater demands of our consuming public for diversity and individuality of products and services. Newly devised derivative products, for example, have enabled financial institutions to unbundle risk in a manner that enables those desirous of taking on that risk (and potential reward) to do so, and those that chose otherwise, to be risk averse. It has enabled financial institutions to offer a wide variety of customized insurance and other products.

Detailed data obtained from consumers as they seek credit or make product choices help engender the whole set of sensitive price signals that are so essential to the functioning of an advanced information based economy such as ours.

The discussion of information collection and processing as a way to manage risk, and thus confer benefits that must be set off against the costs of lost privacy, raises at least two questions. First-order: does the collapse of the financial markets, which suggests that the information was not used to price risk correctly—the risks getting lost in the tranches, as it were—change the calculus of privacy? Here’s a quote from a recent NYT story:

John Kay, a leading Scottish economist, noted recently that he used to teach — along with most other economics professors — that derivatives allowed risks to be transferred to those better able to bear them.

But, he added, experience had shown that to be wrong. Now, he said, he teaches that derivatives allow risk to be shifted from those who understand it a little to those who do not understand it at all. That is not a bad description of how the risks of bad mortgage loans were transferred from those who made the loans to those who bought troubled collateralized debt obligations.

We would be much better off as a society if that particular transfer of risk had been regulated, or even prevented.

Second-order: to what extent does framing information collection as an economic benefit inherently disparage privacy, the way many have argued that framing “national security v. liberty” inherently disparages liberty, when there’s at least as good an argument that, as one of the greats said, those who trade security for freedom will end up with neither? Perhaps a certain level of information privacy actually promotes economic soundness, at a minimum to the extent that it reminds lenders to factor risk into their calculations.

The standing mess gets worse

Trump Plaza of the Palm Beaches Condominium Ass'n, Inc. v. Rosenthal, 2009 WL 1812743 (S.D. Fla.)

I don't know whether to be amused or disgusted. In this trademark case against Rosenthal's use of "Trump Plaza of the Palm Beaches" in advertisements along with the descriptive phrase, "Your Designated Broker," the court engages in extensive analysis of whether Trump Plaza of the Palm Beaches (a Trump-owned condo with a license to use the Trump Plaza name) has standing under the Conte Bros./Phoenix of Broward standing test; very little of its analysis is devoted to answering the question of a nonexclusive licensee's standing, the only question worth asking. As usual, the Conte Bros. test is either trivial, creating only opportunities for error, or misses the point.

The court gets to the answer that the plaintiff has standing--and of course the court may well just be reacting to the parties' arguments, so I'm not saying the judge did anything wrong, just that the effort expended demonstrates how bad "prudential standing" doctrine has gotten. The rot has spread to trademark; I can only hope we'll see some courts rethinking the standing mess.

On the dilution claim, the court focused its attention on the ability of a nonexclusive licensee to bring a federal dilution action, concluding that standing was absent because the TDRA reserves such a claim to the "owner" of a mark, and plaintiff was not the owner of the mark even in its limited territory, both because of nonexclusivity and because of Trump's reserved power to police the plaintiff's use of the mark.

Speedo competitor can't take the heats

TYR Sport Inc. v. Warnaco Swimwear Inc., 2009 WL 1769444 (C.D. Cal.)

Warnaco does business as Speedo, competing with TYR in the high-end swimwear market. The events at issue surrounded Speedo’s promotion of its swimwear; Schubert, a paid spokesperson for Speedo, was also the national and Olympic team head coach. The court refused to dismiss some antitrust claims, and also addressed false advertising and Speedo’s anti-SLAPP motion.

Among other things, TYR alleges that USA Swimming (the entity behind the US Olympic team) falsely promoted Speedo as superior and rivals’ products as inferior, including claiming that Speedo’s LZR Racer provided a 2% advantage over other products; removing logos of competing products from pictures of sponsored athletes; and refusing competitors the ability to advertise in the official magazine, Splash, or to sponsor USA Swimming-sanctioned meets or post signs at meets.

Speedo argued that the Lanham Act claims should be dismissed as mere puffery, and in any event as protected by the First Amendment. The court agreed that many of the statements at issue—general claims about superiority/inferiority and being “far ahead” of competitors—were puffery. It was puffing for Schubert to say that he was going to tell his team to wear Speedo at trials, even if they were sponsored by another company, and that they’d need to choose between sponsorship revenue and gold medals (among other things, he said that swimmers not wearing Speedo “are contracted to an inferior product” and that “There is one manufacturer that's put millions into research while others are more into fashion”). Schubert may be an expert, but his opinion is still just an opinion.

The court took judicial notice of the fact that Schubert’s relationship with Speedo was well-known among competitive swimmers and coaches. Aside from being surprised that this is a proper subject for judicial notice, I’m not sure that cuts it for FTC endorsement guideline purposes, especially if there’s any chance that ordinary consumers will see the endorsements. The court noted, however, that many of the articles reporting Schubert’s endorsements also contained disclosure of his paid-consultant status, which would suffice.

A few allegations survived, though the court thought it was a close case. In particular, specific and measurable claims of superiority based on testing were not puffery; a numerical comparison “gives the impression that the claim is based upon independent testing.” The 2% advantage claim is unambiguous, and not puffery. Given the allegations that the speech was false/misleading commercial speech, the First Amendment argument also failed.

Likewise, in Speedo’s promotional materials, potentially actionable claims were: (1) “Speedo sent team dealers promotional materials that ‘understated the number of athletes wearing TYR equipment (thus overstating the percentage of athletes wearing Speedo)’ in certain races.” (2) Speedo misleadingly used the large majority of swimmers who’ve recently won meets or set records wearing Speedo, because in fact the majority of all participants were wearing Speedo, and Speedo sponsors a disproportionately high number of world-class athletes who are likely to win/set records anyway. (3) Speedo distributed a promotional document to its team dealers misleadingly analyzing the statistics from a particular competition, omitting races with unfavorable results. These were well-pleaded enough to survive a motion to dismiss, though the trade libel claim based on the same facts was dismissed for failure to plead special damages.

Speedo also asserted an anti-SLAPP defense. California’s anti-SLAPP statute doesn’t apply to commercial speech about a competitor. There’s actually an exception to the commercial speech exception for a nonprofit that receives more than half of its annual revenues from government grants or reimbursements, but that’s not true of USA Swimming and the US Olympic Committee, the relevant nonprofits in the case, which make almost all their money from sponsorships and private funding. However, the exception only applies to a person “primarily engaged in the business of selling … goods or services,” and USA Swimming generally isn’t. But it does employ Schubert, a Speedo spokesperson. Thus, applying the commercial exception to these facts is consistent with the legislative history and the purpose of the exception. The allegations primarily involve a commercial dispute featuring an alliance between USA Swimming and Schubert for Speedo’s benefit. USA Swimming argued that granting exclusive rights to a sponsor is standard in sports generally, but that doesn’t negate the allegations of anticompetitive behavior.

Kayak v. Bing

Click for bigger comparison. Story from Wired. The story mentions possible copyright claims, but not trade dress, which seems odd given that the story also quotes multiple reviews noting the similarity between Bing and Kayak, including one person who simply assumed that Bing had licensed Kayak's technology. Query: do you need to make more changes to design around a copyright claim, or a trade dress claim? My money's on trade dress, actually. (Disclosure: I'm a Kayak user and like it; I think the Bing result shown is highly similar to Kayak, but I also think Kayak's design has a lot of attractive functional features, so I have yet to form an opinion about the viability of any legal claim.)