Trademark scope (just for the record)
----- Forwarded message from rick -----
Date: Wed, 5 Sep 2007 19:15:11 -0700
To: luv-main@luv.asn.au
Subject: Re: :-/
Quoting Trent W. Buck (trentbuck@gmail.com):
> See http://bugs.debian.org/354622 for the full story. Sorry I didn't
> include that link before, I was lazy.
As usual for trademark claims, the complainer greatly overstates the
rights actually available to trademark owners[1]. Briefly stated,
establishing a valid trademark entitles you to prohibit others in your
same trade or profession from offering competing commercial goods or
services[2] using your mark in a way likely to confuse your customers
into thinking you have produced or endorsed the competing goods or
services. All other uses of the mark are automatically lawful.[3]
The standard way to disarm any possibility of a valid trademark
infringement complaint is to (1) state who owns the trademark, and (2)
say that trademark-owning party doesn't produce or endorse one's
separate offering.
Trademark law does _not_ entitle you to prohibit third-party uses you
haven't licensed. It just doesn't. Trademark owners always pretend it
does. It's a bluff.[4]
And open source people fall for it every single time -- but one. The
editors of _Linux Gazette_ faced down hostile trademark claims from SSC,
Inc.: After the _Gazette_ staff left SSC's Web-hosting of their magazine,
SSC suddenly asserted trademark ownership over the magazine's name, and
threatened their Internet domain ownership and implied other possible
legal remedies. The editors, who _did_ understand trademark law,
declined to back down, and appended the following notice to the Web site
and all issues of the magazine:
Linux Gazette is not produced, sponsored, or endorsed by its prior
host, SSC, Inc., which has been known to assert trademark claims
despite our founding editor having clarified that he conveyed no
trademark rights to them and that the magazine was to remain
non-commercial.
After observing that the magazine declined to be bullied, SSC eventually
dropped that initiative entirely, and went away. And _Linux Gazette_
remains _Linux Gazette_.
P.S.: When someone says you need to comply with his/her "trademark
policy", or says you need "permission" to use a trademarked name, reach
for your wallet. ;-> (This is not to suggest in any way that Mozilla
Corporation are being evil. They're not: They're just trying to
control the use of their trademarks, and prevent them from becoming
generic, something all trademark owners are motivated to do. See
the hyperlinks in footnote #4 for the reasons why.)
[1] Characterisation should be broadly valid across, at minimum, all
countries using English common law systems. Probably European
continental civil law systems, too, but I cannot be sure.
[2] A trademark over a (non-physical-goods) service is technically
called a "service mark".
[3] Not counting other torts like trademark _disparagement_, in which
you wrongfully sully the reputation of someone's trademark.
[4] Don't take my word for it:
http://www.openp2p.com/pub/a/p2p/2003/08/14/trademarks.html
http://www.bitlaw.com/trademark/infringe.html
--
Cheers,
Rick Moen "vi is my shepherd; I shall not font."
rick@linuxmafia.com -- Psalm 0.1 beta
(_Linux Gazette_ Contributing Editor, but speaking for himself, here.)
----- End forwarded message -----
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