By Dave Culbertson
Special to AECnews
[Editor’s Note: AECnews asked Seattle attorney Dave Culbertson to attend Wednesday’s initial hearing in the trademark infringement suit Autodesk has filed against the Open Design Alliance. This is his report.]
SEATTLE—As presented to US District Court Judge Marsha Pechman, the hearing was over the legal effect of code that the Open Design Alliance has recently inserted into its DWGdirect libraries. The code masks the identity of non-Autodesk-generated files when these are opened in AutoCAD 2007. This leads AutoCAD to consider the files to be generated by Autodesk software, and therefore shuts down a pop-up warning that would inform an Autodesk user that a non-Autodesk file is being opened and that there might be instability or data corruption.
Autodesk attorney Michael Jacobs told the court “The ODA shouldn’t be allowed to claim their files are Autodesk files any more than a guy in the street should be allowed to sell counterfeit Rolex watches.” This, he said, made it a straightforward case of trademark infringement despite the technical complexities: “They’re saying we don’t like what you are saying about us, so we get to pretend to be you…that just can’t be right.”
Judge Pechman appeared to accept this position, at one point asking ODA attorney Jeffrey Edelson whether ODA had decided to deliberately infringe Autodesk’s trademark. Edelson replied that he had not been present during discussions at ODA. But Edelson did not concede that there was a trademark infringement, noting that there was a fair-use exception that might allow ODA to use aspects of Autodesk’s trademark.
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