As a longtime Kayak user, I was shocked when I first saw Microsoft’s new Bing travel site. The pages of search results for airline flights on Bing are so eerily similar to Kayak’s, I thought Microsoft had partnered with the startup. Of course, there is no partnership — and Kayak is not pleased by the similarities between the two sites, noting last week that it’s contacted Microsoft “through official channels about concerns” it has regarding them, though no lawsuit has yet been filed by either side.
When I showed the two to Stephen J. Roe, a patent and software copyright attorney in Madison, Wis., he was similarly taken aback. “If you debrand it, and remove anything that mentions Microsoft or Kayak,” Roe said, “it would be really tough to decide if you were seeing Kayak or Bing.”
Below is an identical search made using both sites (click the image to open a new window with a larger version). See if you can tell which is which, and vote in the poll below.
Even if no code was literally copied by Microsoft in designing Bing Travel, that may not matter. In Computer Associates v. Altai, the Second Circuit Court of Appeals established a new standard by which computer programs can be compared for infringement. It not only found that copyright can be infringed even when no code is copied, but came up with a three-step so-called “abstraction-filtration-comparison process” to determine similarities between two computer programs with disparate codebases. The process looks at programs at various stages of abstraction, filters out items not subject to copyright (like generic search boxes, sorting items alphabetically and the like) and compares what’s left.
For Kayak, Roe felt that a lawsuit (if it ever came to that) against Microsoft would likely focus on what is legally termed “trade dress.” Trade dress is anything that does not have a functional purpose, but instead registers as distinctive to the end user — such as the color scheme, uniforms or interior decor at a restaurant; or the classic “Coke bottle” — and as such, can be protected. What cannot be protected, Roe explained, is any feature that is “functional.” The functionality can be physical (i.e., it works “better” than other products), economical (costs less), or has human functionality (is easier to see, is a color which is strongly preferred by a significant portion of the target audience). For example, if the Coke bottle shape were more resistant to breakage or cost less to make than other bottle shapes, it could not be protected by
copyright trade dress law.
Looking at the two sites, Roe noted “it would be easier to determine what isn’t similar, rather than what is — in that respect, Kayak would have a much lower hurdle to succeed on.” If Kayak can prove Bing’s design causes potential users to confuse the two sites, to look at Bing and be confused as to which site is which, like many (including myself) have done, then Kayak’s look and feel could be granted full trademark protection by the Patent and Trademark Office — something for which Roe felt Kayak should apply.
Comparing Kayak to other competing travel sites, like Orbitz and Travelocity, it is obvious that Kayak’s design is unique and distinctly different. Compared to Orbitz, for example, Kayak uses very little color, search results take up very little vertical space, and there are lots of options on the left-hand side that can be used to narrow a search without navigating to another page. The very same can be said about Bing. “Unless Microsoft has some really interesting defenses about how generic this design is, I would be concerned if I were them,” Roe told me. “They’re going to argue that this is a functional design, or that it is not distinctive. [Those] would really be their only arguments.” A representative from Microsoft told Wired.com via email that the company was “discussing the matter” with Kayak. “Bing Travel is based on independent development by Microsoft and Farecast.com, which Microsoft acquired in 2008,” he was quoted as saying. “Any contrary allegations are without merit.”
If the aforementioned abstraction-filtration-comparison process were applied to Kayak and Bing, the filtration would focus on things that appear on other travel sites, like displaying the length of flights or airlines in the price list. Anything that was unique and different from all other travel sites, like the sliders to narrow the list to certain landing times on Kayak, may be considered protected. Roe noted the similarities between this and Blue Nile v. Ice.com, a lawsuit which was settled out of court after it became clear during pretrial motions that the defendant was going to get hammered over comparable “look and feel” allegations.
By the way, the site on the left is Bing Travel; Kayak is on the right.