RE: [OT] Harassment of open source developer !
Bayer lost the trademark in the US in the case
Bayer Co. v. United Drug Co., 272 F. 505 (S.D.N.Y. 1921),
in which the term "aspirin" was ruled to be generic.
Before 1915, Bayer marketed acetylsalicylic acid powder to
physicians and pharmacists under the name "Aspirin," the same name
under which it was sold in Europe. Pharmacists then packaged the
powder into pills and sold it to consumers as "Aspirin," sometimes
adding the name of their own establishment. Starting in 1915, Bayer
began to ensure that its Aspirin product was sold under the Bayer
name.
The court ruled that although the Bayer Company's advertisements (in
trade magazines, etc.) made it clear to physicians and pharmacists
that Aspirin meant acetylsalicylic acid manufactured by Bayer,
since the pharmacists who sold it to consumers in the years before
1915 did not identify it as a Bayer product, the term had become
generic in common usage. The court even ruled that Bayer's post-1915
packaging and marketing of aspirin reflected the word's generic
meaning among consumers.
Strangely enough, since the same drug manufactured by other
companies was sold under other names, and rarely if at all under
the name Aspirin, it was the sale of Bayer-made Aspirin that
invalidated the trademark, merely because the consumers weren't
consistently reminded of the connection between the name and
the manufacturer.
Although both parties cited Bayer's US patent, the judge decided
the case of entirely different grounds. Neither did Bayer's
German roots seem to have any relevance to the decision (Bayer Co.
as a party in the case was a U.S. corporation based in New York).
Adobe's (or their lawyers') demand for money from the KIllustrator
developers is indefensible, but the logic of this case gives me a
little more understanding of the lengths companies go to trying
to protect their trademarks.
Here's the decision, including a more comprehensive description of
the facts of the case:
http://cyber.law.harvard.edu/metaschool/fisher/domain/tmcases/bayer.htm
on Wed, Jul 04, 2001 at 07:04:32PM -0400, Carl Fink (carlf@nitpicking.com)
wrote:
> On Wed, Jul 04, 2001 at 05:39:33PM -0400, Jason Healy wrote:
> > Probably because if you don't protect your trademarks in this country,
> > they fall into the public domain. That's why you can say "asprin"
> > when you want to cure a headache (because Bayer didn't defend its
> > trademark) . . .
>
> Urban myth. Actually the trademark was invalidated after World War One
(in
> the Versaille Treaty, according to some sources I've seen) because Bayer
was
> a German company. It's still a valid mark in Europe.
Not sure if it was after the treaty or during the war. The US branch of
the company was liquidated/nationalized/appropriated by the US, and the
trademark voided, according to several different angles I've heard.
I've researched this casually a few times over the years but never
really found a definitive answer, odd, as it's such a striking example
of trademark loss.
Loss of a trademark is not altogether straightforward, Adobe appears to
be acting overly aggressively in this case.
--
Karsten M. Self <kmself@ix.netcom.com> http://kmself.home.netcom.com/
What part of "Gestalt" don't you understand? There is no K5 cabal
http://gestalt-system.sourceforge.net/ http://www.kuro5hin.org
Are these opinions my employer's? Hah! I don't believe them myself!
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