The Mac OS X user interface combines the use of color, transparency and animation together with the overall arrangement and set up of various icons in a unique and creative manner. In addition, the Finder toolbar containing the famous Apple Mark is combined with a distinctive three-dimensional applications bar (or “dock”) on which various icons reside. The distinctive nonfunctional combination of elements that makes up the Mac OS X user interface is well known to consumers and has become associated with Apple and Mac OS X Leopard. This combination of elements shall be referred to hereafter as “Apple’s Trade Dress.”

Apple’s Seventh Claim for Relief in the Psystar complaint is clearly addressing the fact that Psystar has installed OS X on the Open Computer and “Defendant’s unauthorized use, sale and distribution of goods displaying Apple’s Trade Dress is likely to cause confusion, to cause mistake, or to deceive as to the source of the goods and services provided by Defendant, or as to affiliation, connection, association, sponsorship, or approval of such goods and services.”

The Complaint can be accessed here: http://blogs.zdnet.com/BTL/images/apple.pdf

I don’t think the fact that the hard drive looks like a Mac Mini is material. Those kinds of drives have been around for about 3 years with no fuss from Apple. See: http://www.gadgetreview.com/2005/12/mac-mini-external-hard-drive-look-like.html, http://reviews.cnet.com/hard-drives/lacie-mini-firewire-hard/1995-3186_7-31467030.html, and http://www.tomshardware.com/reviews/external-storage-a-mac-design,1153.html

Count VII: Trade Dress Infringement – Open Tech doesn’t sell any computers with OS X installed, so no problem there.

I think you may have misunderstood the definition of trade dress. Whether OT has computers that have OS X on them is immaterial if it is deemed that the appearance of the product itself is intended or likely to cause confusion in the market. Look at OT’s (freewebs) website. Front and center is an image that looks for all the world like a black Mac Mini. Except it’s just a hard drive. One can argue that that image and that product are designed to create in the mind of the consumer a connection with Apple that doesn’t exist.