TL;DR:
Semple, a multi-disciplinary British artist, promised to build “a brand new suite of world-class design and photography tools, with an uncanny similarity to the tools you’ve been indoctrinated in.”
“There’s a really urgent need for a suite of creative tools for creators that they actually own rather than rent. In a way, this first started when Adobe and Pantone decided to paywall the Pantone colors and I created Freetone — which was a free color plugin so creators could continue to access their palette,” he says.
“I have lawyers, and I’ve taken advice. We have solid plans in place. I would also point out that nobody has seen the final branding and no software that infringes on any of Adobe’s trademarks has been produced,”
“I have successfully challenged IP owned by Tiffany and Co, Pantone, Mattel, and others over the years. I feel we have a good and thorough understanding of where the legal line is and an ability to get as close to that as possible without overstepping it.”
Says in the FAQ that the foundation being a nonprofit and him intending this to be considered a parody is how he intends to do it. I don’t think that’s bulletproof but he does have the legal experience and has an IP lawyer, so I think he has a shot.
Adobe also has some legal experience and an IP lawyer or 80. And they have common sense on their side. You can’t just say “parody” like a magic incantation. It’s not like calling dibs on the front seat. It actually has to be a parody. I can’t just release my own Guardians of the Galaxy 4 as a completely straight up movie with the same titles, characters, etc., and say it’s a parody.
He has no shot. He has less than no shot. There’s a better chance that his IP lawyer is disbarred than there is that he wins in this.
According to the American bar association, a parody is “conveyed by juxtaposing the irreverent representation of the trademark with the idealized image”. It explains that parody looks like the original, but can’t be a direct copy. Trademark is the more relevant here because the only debate is the logos and similar branding,not the adobe suite itself, because this is being built starting with open-source software by “geeks”, as per the kickstarter.
The same article goes on to point out that it’s important that the parody is actually a comment on the thing being infringed on. Hyundai lost a parody argument when an ad used Louis Vuitton markings on a ball to comment on luxury products in general, with the court making it clear that if they had been commenting on Louis Vuitton specifically, it would have counted.
This product’s logo, as far as we have seen it so far, certainly infringes, as parody has to, but the work is definitely intended to critique Adobe’a business practices.
Next, the article goes into trademark dilution, namely, that “abode” and the logos used would cause brand confusion. The image I saw might make me do a double-take, but there’s clearly a little house in there, and that’s not adobe. If the logo was always with “Abode”, it’s my opinion that that’s pretty distinctive, considering the logo Adobe has is an “A”. Precisely, as the article states, an association, but not a false claim that adobe is behind the Abode software. “The more famous the mark being parodied, the higher [Adobe’s] burden becomes to establish blurring.”
Trademark infringement is a seperate from blurring, but essentially the same argument applies. As long as a “reasonably prudent consumer” isn’t fooled, it’s not trademark infringement.
Copyright is similar in nature to trademark law here, but also doesn’t assume commercial gain, which means it’s more weighted towards Abode here, as a non-profit.
Now, yes, a good lawyer can make a case trying to remove any of these defenses, and Adobe will certainly try. I’m not saying it’s a sure thing. But I do think there’s more than enough here for this to be an actual fight in court. These facts vs Adobe’s money.
It’s going to be extremely hard to convince a court that the thing you’re making is both a parody and a legit competitor you believe users should switch to.
As you point out, parody has to be a comment on the thing you’re parodying. In the Hyundai example, the problem was that it was commenting on something else. The problem here is that it’s simply not a comment on anything. It’s a product you’re making to compete with the original.