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Summary:

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 […]

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.

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  1. I don’t know how long kayak has been using this layout, but FareCast, the company that microsoft purchased to create this “Bing Travel” portal used this layout for at least a number of years. If Kayak did in fact come up with this design first, it seems like they must have been waiting around for the pockets to get deeper before they pursued any lawsuit.

  2. It seems like a ridiculous lawsuit considering there is a rather small number of ways to intelligently (and logically) display a matrix of travel information from various sources. It’s a pretty obvious and simple way of displaying a plethora of sources in one concise list. I understand that Kayak is angry because they will likely be put out of business by Bing Travel, but this looks a whole lot like they were sitting around waiting for someone will money to do this so that they could attempt to sue them. I liked and used Kayak, but I hope they lose this lawsuit because it’s a joke.

    1. Really? There is a ton of data on that page, and it has the same layout. Go compare it to expedia or some other travel site and see how similar it is to these sites.

      1. “Data” is not protectable (i.e., exclusive to one person) under either copyright or trade dress law.

        As for the “format” of the fare results, it is a simple list. The risk of embracing simplicity is that you will be copied — and that is how it should be. The right to sell a metal box sitting atop four rubber wheels and having an engine and windows and a hole for fuel input belongs to everyone, NOT just the first car manufacturer.

        It is irrelevant that other websites that offer travel services publish webpages that show fare results in a different way. While that does demonstrate an “alternative” to a simple list, the alternative speaks to the creativity of those website owners — and to the lack of creativity by Kayak.

  3. Subraya Mallya Monday, June 29, 2009

    I think the industry has/should have moved past the fact that in search UI makes a difference. Not a big fan of MS in any way but I think it is a smart move. If there is a UI that has been overwhelmingly accepted by consumers why re-invent the wheel for the sake of it. Why not use that as a template? Yes they could have placed the widgets/gadgets in different positions but you can only do so many cosmetic variants. Ultimately it is about the relevancy of the results that search engine brings back to the user that matters. UI – not so much. Craigslist and Ebay despite their horrendous UI have proven that beyond a shred of doubt.

    Hopefully our legal system has revv-ed up to realize the true value of a search engine.

    Subraya Mallya

    1. >>Ultimately it is about the relevancy of the results that search engine brings back to the user that matters

      Ironically, they use the same source for flight prices. Any searches, as you can see with the example here, will likely result in similar results.

  4. I’ve heard it many times, i’ll repeat it here:

    If your business is built around something that can be copied in an hour, you don’t have a business.

  5. What other ways would you do a flight search? Here’s the same search on SideStep.com: http://www.sidestep.com/flights?fid=&travelers=1&cabin=e&return_date=07/17/2009&return_time=a&oneway=n&depart_date=07/10/2009&depart_time=a&origincode=BOS/25588&origin=BOS&destcode=LAS/35107&destination=LAS&action=doflights. Notice any similarities?

    This is a non-issue as far as I’m concerned and if Kayak dare sue MS on this, they would be sorely mistaken.

    And, I don’t even like MS!!

    1. I get your point that there’s not a lot of ways to display what is essentially the same data on this kind of search, but SideStep is a bad example because they merged with Kayak:
      http://www.sidestep.com/help/kayak-sidestep.html

      Try the same search on Orbitz and you will see quite a different results layout/presentation.

    2. Take a look at the same search from TripAdvisor, though:

      http://flights.tripadvisor.com/?airline=&travelers=1&cos=0&nonstop=no&nearby%5B0%5D=no&nearby%5B1%5D=no&airport%5B0%5D=BOS&airport%5B1%5D=LAS&date%5B0%5D=07/10/2009&date%5B1%5D=07/17/2009&time%5B0%5D=anytime&time%5B1%5D=anytime

      Clearly the same information, still organized similarly, but no consumer is going to mistake one for the other or carry over perceptions of the Kayak brand to the TripAdvisor site (as is the case with Bing’s duplication)

  6. Artruro Jayson Monday, June 29, 2009

    It was brought to Kayaks attention rather than their waiting around for it to happen. I can’t find another site that has such a similar UI, but then Kayak is known in the travel site biz for their excellent results, and there’s a lot to like about their UI layout over any other in the online travel business. This is maybe more flattery and common sense, on the part of Microsoft, than plagiarism.

    I agree that UI is not the sole reason for a sites success, proven by the case of craigslist and ebay and other sites, but if I had to chose to pattern the design of my site after Kayak, or after craigslist and ebay, I’d surely pic Kayak.

    Also, Kayak is beyond the vultures at this stage. They are, for all intents and purposes, a travel-centric rival to craigslist and ebay, and it wouldn’t be a surprise if they branch into books and consumer products and classified advertising and other markets. If they sell out to anyone it would be a surprise.

    I’ll still look for the best travel deals, and Kayak is sure to offer their share of them.

  7. randy stewart Monday, June 29, 2009

    First and foremost, I’m no Microsoft lover and we know that they’ve had UI and design envy of the Mac, but if you can’t tell the difference between the right and the left, you’ve never used Farecast (now Bing Travel).

    Both are commodity travel search engines and in many ways it’s natural that their UIs look similar. If you take a look around the comparison shopping sites, (shopping.com, yahoo shopping) you too can marvel at their similarity too.

    The biggest difference (and reason to use Bing Travel), is that they tell you whether or not it is a good time to buy a flight, based on ticket price behavior. THAT feature is clearly featured in the top left of Bing Travel. While Kayak was a pioneer in this space, Farecast’s flight forecast won me as a customer. It seems that Kayak really just sat on their hands while others like Farecast innovated.

    Why innovate when you can litigate? Maybe Kayak is feeling the pinch of economic downturn while Farecast looks pretty smart having been acquired by Microsoft just prior.

    Perhaps Kayak needs to go and get acquired, too.

  8. Is this seriously a lawsuit? Why compare the result pages? Check out the top page i.e. bing.com/travel and kayak.com. Anyone with little intelligence would definitely notice they are two different websites. I am no fan of msft but, this seems bs lawsuit. I agree with randy i.e. why invent when you can sue.

  9. Am I the only one who thinks this article was not worth writing?

    1. why do you say think? you can’t really make that statement without backing it up.

  10. Is it really true that Farecast copied Kayak? Farecast had this design for many years …

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