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Samba Runs Into Naming Problems In Germany
roadrunner2000 writes: "Some German company claims to have the right on the brandname "samba", so they try to sue everyone in Germany which uses
the open source project "Samba". Get more information from
Heise Online" From the Fish Translation, it seems that the acronym SAMBA stands for something else in German. If you can add more information, post it below.
well, what's really weird about this whole thing is that Volker registered a trademark for the samba logo, but not for the word samba... also, the trademarks are in two different categories, and I don't think anybody would ever confuse banking software with networking software.
I think it is interesting to see that finally lawyers come to an understanding what the net and information techonlogy can mean to them: a wonderful playground where they can find easy prey. I sure hope they try to sue every company that is offering samba support, because I could imagine that IBM and HP could get seriously annoyed by this and get their lawyer amanda to squash their opponents... or else samba has to be renamed... or stopped. I wouldn't mind, I never saw the need for windows connectivity anyways... hehe...
Bingo Foo
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taken! (by Davidleeroth) Thanks Bingo Foo!
However, so far as I understand trademark law, it only applies to the "owners" of a conflicting product who profit directly from its sale or distribution. Since open source software is not (usually) sold, including in the case of Samba, there should be no one to sue here.
The users of the software are not selling it as their own product, even if they use it in a business setting, and the "owner" of the software is not profiting monetarily from its sale. This should be thrown out, regardless of whether the trademarks conflict.
Worst case, the Samba maintainers should be allowed to change the name of the package, not penalized for something from which they did not derive a profit.
Exactly right.
s tupid-fucking-banking-piece-of-shit-closed -source-worthless-fucking-product-that-can-only-ma ke-money-by-terrorizing-german-users-of- free-software.
Rename the "German Release" of Samba to:
In-germany-this-is-freeware-SMB-not-samba-that-
Call it "Samba" for short.
The Future of Human Evolution: Autonomy
This is a fairly normal thing - the same would happen in the US if, say, I created a mySQL spin-off and called my new database 'Oracle' or 'Interbase', I'd be in a lot of trouble for trademark infringement.
:-)
Um, no. It's more like if Oracle sued you for making a cheese pizza or car called "Oracle". Trademarks do not apply across different domains; there can be an ACME furniture and an ACME widgets at the same time. For a fun experiment, look at the phone book under 'ACME'. It's the John Smith of corporations
--
Friends don't let friends misuse the subjunctive.
If you are a german maybe you want to tell your bank what you think about this and why you think about moving your account somewhere else, (most of them are banks) if they appear on this list.
In this case i'm less concerned about a business trying to defend their name than about the way they do it, namely using 'Abmahnung' demands where unsuspecting businesses get a letter demanding money from them just because they used the wrong wording in their advertising (see this comment for a pretty good explanation).
"By the way if anyone here is in advertising or marketing... kill yourself." -- Bill Hicks
Is Germany going to sue Disney for naming that one lion Samba in the Lion King?
Agh.
Who's the black private dick, who's a sex machine for all the chicks?
Gee.. Suddenly the US courts seem to be more sane than previously thought.. Hmmm...
l8r
Sean
Hexy - a strategy game for iPhone/iPod Touch
WWJD -- What Would Jimi Do?
I am quite civilized, and I should be brought a beer immediately. -- Bruce Sterling
And how much money did this 'poor old lady' earn by suing? (um, how much did her lawyers earn might be a better question but...). :-)
("thanks to coffee-burnt-genitals-of-an-old-lady law suit, budget surplus doubled!").
In most other countries the amount would have been equal to estimated damages (and medical costs etc), not some percentage of profit (size of company, stock value, whatever).
Punitive damages seem to be one of those anglo-american inventions that are not widely used in rest of the world... And it's kind of hard to understand that even if punitive damages are used, why are they handed to suing party as kind of a bonus, instead of, say, being given to a volunteer organizations or funds ("McDonals Fund for Healing Coffee Burns?"), or, god help, used for filling the bottomless government coffins.
I like paying taxes. With them I buy civilization -- Oliver Wendell Holmes
In this context SAMBA seems to mean Sue Anybody that Might Be Alive
The SMB implementation seems to have been around since 1991, but doesn't seem to have been called "Samba" until 1994.
The CMG trademark claim may be legitimate under the current trademark categories in Germany (and probably US categories as well).
As an aside, the UK trademark office is down overnight (CMG's Samba is used in the UK as well), and the German trademark office charges $2/search, with a $75 minimum. The US PTO web services seem really nice in comparison (and it lists lots of "Samba" trademarks, although all of them seem to be "typed drawings" rather than words).
At any rate, Hemos gave a perfectly satisfactory answer to this in a previous article. Slashdot/Andover contracts with all of their advertisers independently and does not deal directly with ad companies. However, certain advertisers have all their advertising done through doubleclick et. al. So to display those ads on Slashdot, they have to pull it from the doubleclick ad server.
I'm not trying to kiss up to anyone here, just pointing out that I believe Slashdot is not being hypocritical by displaying ads that come off a doubleclick server. However, they probably should figure out a way for those ads not to set a cookie.
No, Thursday's out. How about never - is never good for you?
I agree whole-heartedly. For my thoughts on the matter, see my page at honeypot.net.
Dewey, what part of this looks like authorities should be involved?
An acronym (pronounced AK-ruh-nihm, from Greek acro- in the sense of extreme or tip and onyma or name) is an abbreviation of several words in such a way that the abbreviation itself forms a word.
According to Webster's, the word doesn't have to already exist; it can be a new word. Webster's cites "snafu" and "radar", two terms of World War Two vintage, as examples. Implicit is the idea that the new word has to be pronounceable and ideally easy to remember.
Frequently, acronyms are formed that use existing words (and sometimes the acronym is invented first and the phrase name represented is designed to fit the acronym). Here are some examples of acronyms that use existing words:
BASIC....Beginner's All-Purpose Symbolic Instruction Code
NOW......National Organization for Women
WHO......World Health Organization
Abbreviations that use the first letter of each word in a phrase are sometimes referred to as initialisms. Initialisms can be but are not always acronyms. AT&T, BT, CBS, CNN, IBM, and NBC are initialisms that are not acronyms. Many acronym lists you'll see are really lists of acronyms and initialisms or just lists of abbreviations. (Note that abbreviations include shortened words like "esp" for "especially" as well as shortened phrases.)
Summing up:
An abbreviation is a shortening of a word or a phrase.
An acronym is an abbreviation that forms a word.
An initialism is an abbreviation that uses the first letter of each word in the phrase (thus, some but not all initialisms are acronyms).
If trademark X is registered in country Y, then use of the name X in non-Y countries will create a conflict whenever items X from non-Y are used in Y.
Is this concept too difficult for judges to comprehend? Why are they even entertaining such legal action, when name clashes are such an obvious result of national trademarking?
"The question of whether machines can think is no more interesting than [] whether submarines can swim" - Dijkstra
First check out this entry in the Apache JServ FAQ. JServ has a RL namespace conflict too, and yet, no lawsuit. Why does this bank thing have to get all pissed off about Samba (which is not SAMBA)? These people must never have heard of the raw flaming power that is Slashdot when they decided to go after the good people of Samba. And they must not be into Latin dance.
It's rare that you're presented with a knob whose only two positions are Make History and Flee Your Glorious Destiny.
First McDonalds kept their coffee that hot (180 degrees) because it stays fresher longer. They had received dozens of complaints about serious burns and ignored them. They figured the money they saved on coffee was worth more then the hazard hot coffee posed (3 degree burns in 3-7 seconds -- try to get out of a car and take off you pants in 3-7 seconds as your groin is being charred).
So basically McDonalds did a cost/benefit calculation and figured profits were more important than inflicting serious wounds. And let me make a point, people spill food and drinks on themselves, it happens all the time and places that serve millions of people a year should probably take that into account. Don't try the gun/smoking analogy. Firstly analogies are logical fallacies, they illustrate but do not prove a point and second, at least nowadays, people realize that smoking and guns are dangerous. When I get a slushy I don't expect it to dissolve the lining of my stomach, just as one would not expect a cup of coffee to cause 3rd degree burns.
The original amount she received was one days PROFIT from McDonalds COFFEE sales. Millions of dollars. It was a punitive judgement, as in "you put profits before the health of your customers". She got it because she stepped forward when others didn't. She lost all of it on appeal except for lawyer's fee's and medical bills.
Do you ever feel like there are people watching you? You're not alone.
Just a quick note on frivolous lawsuits:
The "McDonald's coffee case" is frequently held up to ridicule as a classic example of a frivolous lawsuit. After all, old lady spills coffee on herself and gets burned, then sues - what's more to know?
The coffee one gets out of a home coffee machine is about 140 degrees F. A really hot cup of coffee out of a commercial device might hit 160. During the trial, a McDonald's QA manager testified that company policy dictated that their coffee be maintained at not less than 180. That's enough to cause a third degree burn in less than five seconds.
Which is what happened. Stella Liebeck was handed a cup of this coffee in a styrofoam container. When she spilled it, the burns were bad enough to necessitate the use of skin grafts. I refer you to the Consumer Attorneys of California pages, where they lay out a pretty good summary of the proceedings.
If you want to make fun of the US judicial system, go ahead, we can take it. But don't make fun of a poor old lady who got handed a little coffee grenade. Some people screw up, but she just got screwed.
They not only use Samba as a rhythm pattern on all their way-kewl 80's synths, but they had the audacity to add - Samba 2 to the mix! "Boop boop. beep beep. Bah!(TM)" www.ridiculopathy.com
You're right, and wrong.
In this case, its a computer software company, suing over a computer software name. Banking software vs. networking software.
Its the same domain.
- Michael T. Babcock (Yes, I blog)
Do a search on any keyword-compatible search engine for "samba." Apparently, the keyword has been purchased by the Society for Ambulatory Anesthesia. Who would'a thunk it?
For more information, click here.
fyi, Adidas has been using the Samba brandname for at least 15 years. Check this out. I wonder if they'll get involved as well...
--BlueLines "The cost of living hasn't affected it's popularity." -anonymous
Providers of support for the open SOURCE often commodity Samba are affected by a warning wave. Several companies, which are entered in the Web on a list, received a writing, in which they are requested to offer Samba no longer in the name of the company CMG to apply, to drive out or in the trade use. Samba is a software, with itself the Unix and Linux computer as server and Clients in a Windows network to begin leaves. The program free of charge available in the Web belongs to the most renowned success projects in the area open SOURCE often commodity. The name SaMBa comes from the SMB log used in Windows networks.
After information of a coworker of CMG opposite c't the warning is based on a word label within the area of " data processing programs " (class of goods GK 9) for its own bank software ( standard log-on reporting department banks , briefly SAMBA). A Germany width internal message concerns itself, was called it with CMG, in order to protect the own rights. How many warnings were sent away, the company did not want to indicate however. CMG sets the article the subject of the warning to 100.000 Marks; the assigned attorneys want to have refunded the warned company in each case from costs from scarcely 1900 Marks to 8 August.
Volker Lendecke, one the Samba developer, let enter a picture label for the Samba Logo however in the last year in the area " creating programs for data processing and EDP call circuits " (class of goods GK 42). Most important target was to protect the Samba project from such warnings avowed Lendecke.
Never trust a company that makes their techies wear suits...
No one can understand the truth until he drinks of coffee's frothy goodness.
--Sheikh Abd-Al-Kadir, 1587
Also, samba is an English word (refered to a latin american beat/dance).
So, like Sting being Stung, I doubt this infringement will hold up in court.
Mode (3) smart-aleck mode. Press * to return to main menu.
I think the problem is how you should define what's a 'correct' name. Just because any company on the world uses "Explorer" you can't be forced to use anything else for your own brand name.
I've heard of a case in germany where someone got sued because he linked to another web site where the sueing person was offended. That's ridiculous!
Something's pretty wrong with german law. I live in Austria, which is next to Germany, and I always read c't and there are lots of articles about things like that! I hope Austria's law is different in this case.
But there's the big problem: law and computers don't mix. Laws are much too slow evolving for this industry.
There are only so many short but pronouncable words that you can construct. There are billions of people on this planet, many of whome are naming things. Conflicts are inevitable. As a species we need to become mature enough to deal with this, or else we'll destroy our fragile world with rampant lawsuits.
-- $SIGNATURE
In any case, another important question will be when CMG applied for their trademark. If Samba (the free SMB implementation) was in common use in Germany before then, it will likely be exempted from claims, even from someone holding a registered trademark, just like it would be in the US.
Come on!
1: They are both software, and sometimes that can be confusing enough. For example, my boss has confused ASP (Active Server Pages) with ASP (Application Service Provider). And you don't have to be stupid for that, you need some context to make sure which ASP you are talking about.
2: You bet? Well it is not an argument unless you know.
3: Even though Samba-SMB is not commercial, it is marketed by commercial companies, and german Samba has much to lose by not defending their trademark.
4: Someone claims a copyright for SMB-Samba, right? The license does not matter, the copyright matters.
Standard Anmeldung Meldewesen Banken This is what they claim forms the acronym SAMBA. It stands for (with a bit of rusty German) the standard bank corporation group, as a few words don't transliterate. Another problem with cross-cultural issues being brought to a head by the internet. Cool. But, in this case, isn't the Open Source license sufficient to demonstrate money is not being made from the software itself? But, I German law is worse than my German...
In Germany because 'vic' could be construed obscene. Likewise Japanese 'Puckman' became 'Pacman' in the US.
SAMBA, a must have for Unix/Windows interoperability should be able to accomodate - Just call it FreeSMB or something.
SOMBE
SIMBA
SUMBY
etc
try { do() || do_not(); } catch (JediException err) { yoda(err); }
But you can get a patent...
... Intel has the letter 'i' patented.
- Michael T. Babcock (Yes, I blog)
> Why can't they say something like,
> "Well, it looks like they weren't
> really trying to take our trademark;
> why don't we just be friendly and
> understanding and work something out?"
> Instead of, "Ha ha ha ha! We're
> going to sue your fucking ass!"
Exactly.
*This* is the big question in the current debate about a number of similar incidents over here in Germany.
In fact, people are trying to proof in two particular cases that these brand names were registered solely to make money from the sueing that follows. One was "Explorer", the other was "Webspace".
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You may like my a cappella music
So, there is a preexisting product in the German software market called 'SAMBA', and the company that makes it wants to protect it's investment in that name. I think they're right.
Well, obviously they are not just upholding their trademark but trying to make revenue by "Abmahnung" lawsuits. I mean, they basically sent bills to all subscribers of the SAMBA/FreeSMB mailing list. If they would just wanted to protect their trademark they just would have contacted the authors, probably via the mailing lists.
This is just another Abmahnung ripp off, as it is pretty common in Germany these days, and our government is still sound asleep...
I mean, protecting your brand name - fair enough. Sueing the Samba team if they refuse to - they have been warned. But that this kind of behaviour is legal practice is just embarrassing for German law and judges!
--- The light at the end of the tunnel is probably a burning truck.
Given doubleclicks arch-evil plans for our browsing click-trails, I would suggest Andover.net and Slashdot reconsider their use of doubleclick.
Coffee is boiling water to which flavoring has been added. It follows that when you order a cup of coffee, you're asking for water which was very recently boiling. You are not ordering water that has been carefully chilled to a specifc temperature far below the boiling point. If you want coffee chilled to the (comparatively) frigid temperature of 160 degrees, then you should ask for that.
Face it, if the old woman had ordered boiling water that had been poured over ground coffee beans, and then casually stuck it between her legs, the court would have held her mentally incompetent, a hazard to herself, and locked her up the county mental ward.
When you make an unwarranted assumption about pizza, and burn the roof of your mouth, everybody laughs. Heck, you laugh at yourself. If you sued the restaurant, the judge would laugh. The moral of this story is not that you shouldn't laugh. It's that you shouldn't go through life making assumptions with no thought to the consequences. Especially when the potential consequences are severe. If something is hot, make sure it is not *really* hot. If something pushes hard, make sure it won't squash you like a bug. Ditto for electricity, liquid fuels, acids, etc. Safely testing assumptions is quick and easy, it just takes mental effort. Nobody ever won a Darwin Award just by being stupid. They won in almost all cases by disregard for consequences.
-- ;-)
Kuro5hin.org: where the good times never end.
SINS
Sins
Is
Not
Samba
--worth a smirk anyway
Before I part with'em: two pennies weigh ~4.996+/-0.014g, have a zinc core, and the face of Lincoln. You can keep 'em.
Sas -> Sas ain't Samba
Jon Bardin
... and may a plague of RMS's befall anyone who says it's a bad idea.
(hey, I just realised that my sig is on-topic!)
Any sufficiently advanced civilization is indistinguishable from Gods.
Technically, that is what they are doing (the "friendly" approach) and that is what an "Abmahnung" is. It is a request to stop violating a trademark without actually taking it to court (but with the implicit or explicit threat of doing so if the other doesn't back off).
Now the thing is that they charge lawyer's costs with that (which are presumably a lot lower than the costs when you lose in court). This has in the last years led to widespread abuse of this system (a certain Munich based lawyer became very notorious for that) by trademarking incredibly common terms (Explorer, Webspace, ...) then sending out serial requests with lawyer's charges of around $500-$1000.
They claim that this is their cost, in fact it's nothing more than letters created with the serial letter function of some word processor. They bet on the fact that none of their victims has the money to spare to risk going to court and settle this for real (they still might lose) or that they have enough money that they don't bother. Microsoft is paying royalties to some small company for using the trademark "Explorer" in Germany.
I invented a product several years ago named Germany. It does nothing, it's just a little technical looking box with lots of blinking lights and a digital readout that flashes meaningless numbers. I named it Germany, and then this country tries to steal my idea!!! I am hereby sueing Germany for 1.9 Trillion dollars, in small unmarked bills please.
Okay, like the post said, SAMBA is an acronym. It stands for Standard Anmeldung Meldewesen Banken, which essentially says something like "Standard log-on procedures/protocols for banks". It's a standard method for banks to communicate w/ each other....apparently proprietary and German. Anyway, I just thought a few people might be interested in knowing what it was from someone that actually is fluent in english and german instead of a translation from a web site. Have fun...
Again, this all comes back to the "microsoft" underwear thing - you should be able to use a name if it has no chance of getting confused with the preexisting one.
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Mod up a post Rob doesn't like and you'll never mod again
Maybe someone whould tell Microsoft, who have trademarks on things like "Windows Media", "Mobile Explorer", "Links", and registered trademarks on "Natural", "Starts Here", and of course "Windows". Most large corporations have managed to get trademarks on a number of common words and phrases.
"The invisible and the non-existent look very much alike." -- Delos B. McKown
The German trademark law is a bit complicated, I'm afraid, and there is probably nothing in the Web in English, but here's at least some information in the form of translated headings to get you an idea of how it is structured.
Those out there with some knowledge of German might try the Bundesgesetzblatt (the Federal Law publishing board) or this comprehensive overview of German trademark law with the texts included; I think you can forget the idea of having it babelfished, though, because it's probably a bit too complicated in style to translate properly. Another good resource is the web site of the DPMA (Deutsches Patent- und Markenamt), the German Patent and Trademark Office.
If you know some German and want to go for an entirely different view of the matter, you might have a look at the other side's point of view, in this case in the form of the aforementioned lawyer Günther von Gravenreuth, well known (not to say notorious) for his actions against private and commercial "computer piracy". There even exists an FAQ for people who had legal trouble with him in one specific matter.
The European Union point of view on trademark law is available at the European Patent Office, with loads upon loads of links to various European and other offices and institutions, European law texts, patent databases and other stuff.
As a state gets corrupt, its laws multiply; the most corrupt states have the most numerous laws. (Tacitus, Annales 3:27)
When are people like this going to realize the differences between the words, trademark, copyright and patent?
You meant, trademark.
[
> Samba, it's the name of a dance - right?
Yup. It's a moderately fast dance for a couple, based on a 4/4 rythmn and latin-influenced music. The basic step involves reciprocating side-steps with emphasis on moving the hips. This is decorated with moves such as the "mambo" and "rumba".
I thought this was not allowed.
Gee, I think I'll copyright RADAR, or FBI, or CIA, or...
You get the idea. The complaint is complete bull-puckey.
"...they may harpoon us, but they ain't gonna pick us up on no radar screen!"
In any case, get over it and have a different name under for SAMBA in Germany. If the other company has been around first and flaunting their name first, then they have the rights.
Imagine a Japanese company having a computer product called Windows before MS. MS would have had to sell their product in Japan under a different name. (Would have been pretty funny too)
Also, those venomous snakes will have to find a new name as well.
Bill - aka taniwha
--
Leave others their otherness. -- Aratak
Facts:
This is the case of someone misusing a product and suing because they don't want to accept the blame. There is no difference between this case and the luser who lost some fingers trying to stop the blade on his chainsaw quickly.
If you use the product in the normal fashion, you will not be hurt. If you misuse it, you may be hurt. Why is this so hard to grasp?
As a side note, why does anyone trust the Consumer Attorneys of California, a group which has a very powerful financial incentive for encouraging frivilous suits? Would you trust a Microsoft report on Apache?
__
Oh, wait, that's right...
Q-Bert
"But don't make fun of a poor old lady who got handed a little coffee grenade. Some people screw up, but she just got screwed."
So, it's OK to ignore all common sense and do stupid things, and expect others to take the blame for you? If you step on a nail and puncture yourself, you don't sue Craftsman for making the nail sharp, do you? If you put your hand on a lit stove burner and burn your hand, you don't sue Whirlpool because the stove was too hot, do you? When you burn the roof of your mouth on a hot piece of pizza, you don't sue Domino's because they made the pizza too hot, do you?
Yeah, so this old lady got burned by hot coffee. How in the hell do you think coffee is served, COLD? I used to work at a McDonalds in my teenage years, so I know about how hot McDonalds coffee is. But common sense dictates that hot coffee is not to be placed between your legs, it's to be placed in your car's cup holder, or any related holding device. Granted, the car that Mrs. Liebeck was in didn't have a cup holder, but maybe she could've thought of a better place than between her legs to put that cup of coffee. But rather than use common sense, she put the coffee between her legs, opened the top...and made history as a prime example of the "sue happy" mentality of America today. Yes, McDonalds was partly to blame because they served their coffee at a rather hot temperature, but perhaps Mrs. Liebeck could've used a little common sense and not placed that hot coffee between her legs.
And the moral of this rant is? Use your common sense people! When you spill hot coffee on yourself, it's going to burn. When you stick a fork into an electrical outlet, you're going to get shocked. When you step into the oncoming path of a speeding train, you're going to get killed. When you run on a slippery surface, you're going to fall on your ass. Don't expect a company to make you wealthy for life just because you're an idiot.
And for further reading of lawsuit abuse, I suggest everyone check out Overlawyered.com.
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The real Raunchola isn't cool enough to have any imposters
So, there is a preexisting product in the German software market called 'SAMBA', and the company that makes it wants to protect it's investment in that name. I think they're right. The SAMBA project should refer to the product be a different name in the German market. Even Anheiser-Busch has to refrain from selling a beer called Budweiser in some markets, because that name was already taken.
There are good reasons for protecting trademarks, and OSS should play by the same rules as everybody else.
Technically, ``Nabisco'' wouldn't be an acronym but a sort of abbreviation. Something like ``FoMoCo'' or ``MoPar''. As for true acronyms... ``DEC'' is/was a trademark of Digital Equipment Corporation and I believe ``IBM'' is a trademark of you-know-who.
--
CUR ALLOC 20195.....5804M
In the Lion King it's Simba not Samba.
The snake is the Mamba not Samba.
And I better not get some idiot trying to correct me and say that the Mamba is a dance because that would be the Mambo.
I think that everyone who doesn't live under a rock (excluding the morons) knows that Samba is a dance, and that under at least US trademark law you can't TM an English word or common phrase. Unfortunately I'm unsure on what the German law would conclude.
"Do not be swept up in the momentum of mediocrity." - anon
Typical German lawyers. When they send you a notice you are being sued, they include a demand for immediate payment for their services. Even if you win the case, you are still liable for their bill, but usually the court orders the loser in the case to pay both sides legal bills.
I hate German lawyers the most.
It will be very hard to tell which way this case will go. If they get a nationalistic judge, free software will lose out, and probably be asked to pay damages (its free, doh!). If they get a younger and better educated judge, the case will get thrown out. If they get a clued-in judge, the banking system will lose and be chastised for such a frivilous case. But clueful judges are rare in Germany, and the banking system will know which is the best court to file for their advantage.
the AC
Hemos is like...sci-fi fans;he thinks technology is cool, but he hasn't bothered to understand the science it's based on
Okay, here's the deal:
In Germany, a firm called CMG seems to have registered a trademark for the word 'Samba'. That trademark refers to banking software, which seems to handle all kinds of banking transactions, using forms, etc. If you feel like wading through a longish list of features in German, see their product site.
CMG, makers of that software, have sent out snail mails to all people subscribed on a German Samba mailing list (i.e. the UNIX SMB software), and have demanded that all users immediately stop using, distributing, or advertising said software. Yeah, that's right: if you're using it, you have to stop doing so right now.
CMG is doing a so-called 'Abmahnung', i.e. a non-judicial process in which a private business/person can demand money from someone disrespecting their trademarks/trade laws. The total value of this process - CMG wouldn't say how many people are affected - is said to be about 100 000 German marks (DM), which is about $60,000. Their lawyers are also demanding 1900 DM from each of the parties involved. That's right - you were using Samba, you got the letter, you have to pay their lawyers about $1200 - until August 8. They'll probably sue the involved parties for that sum of money afterwards.
The c't article adds that Volker Lendecke, one of the German Samba developers - in order to avoid such trademark issues - had already registered a Samba pictorial logo trademark in Germany last year.
Such 'Abmahnung' demands are pretty common in Germany, lawyer firms routinely search advertising directories, etc. for anything that may be considered ambiguous in any way, or infringing on anyone's trademarks, and send out ludicruous demands out, often to people who have no way of acting against them. Whilst it's easy to claim that Germans are idiots and no such thing would ever happen in the US (free speech, etc), please remember that frivolous suits are pretty uncommon in Germany: people claiming money for eating peanuts and suing because they were allergic to nuts and there was no 'WARNING: May contain nuts' label on the box, or people suing because they spilled hot McDonalds coffee on themselves, would be laughed out of court in Germany. This is a fairly normal thing - the same would happen in the US if, say, I created a mySQL spin-off and called my new database 'Oracle' or 'Interbase', I'd be in a lot of trouble for trademark infringement. *shrug* It's that simple. Firms have to defend their trademarks, or they lose them if they become diluted.
Alex T-B
St Andrews
I'm glad to see we don't have any bigots on Slashdot :-).
That said, and overgeneralisations cast aside, the legal system of a given country is their right to establish. Just because another country's mindset and worldview disagrees with it does not make either right or wrong. The choice to 'do business' in a country includes the choice to abide by their business-related laws.
The only thing I would request of Germany et. al. (including the USA), is that non-profit status be given software "groups" developing 'free' software and special rights given to protect them against such lawsuits as they have little means of defence.
This would, of course, not apply to 'services' companies who give away software but sell a service.
- Michael T. Babcock (Yes, I blog)
This is part of an ongoing problem here in Germany. I am not a lawyer, so here's my layman's summary.
It is possible to register the commercial use of a product name for a certain business category. This is a good thing, of course, since this is meant to help you protect your trademark. Once you have registered your product's name, you can sue anyone who abuses this product name.
E.g., as in this case, there is a company who owns the right to use the product name "Samba" with computer-related services, and thus, they can threaten to sue anyone who abuses "their" product name in the same category.
However, they cannot go after any dance school here in Germany that happens to be named "School of Samba" or something like this. It's a different business category.
Now, the government agency that is registering these names is obviously rather clueless, as are several courts here in Germany.
A few years back, a (very) controversial German lawyer started to sue any computer reseller who mentions the "Triton" motherboard chipset in his ads or price lists, because he was defending a client's rights to the product name "Tricon". Strangely enough, because of the "striking name similarity", this lawyer has won several times.
Right now, this lawyer is helping another client defend his rights to the computer-services related product "Explorer".
Yes, if your product is named "Explorer" and you sell or distribute it in Germany, you'll have to pay a hefty fee to this company. "To distribute" also means linking to it(!) and this lawyer is sending out numerous bills to website owners running a list of Shareware links to products such as "FTP Explorer".
Yes, it is claimed that Microsoft has paid a fee to be "allowed" to use the word "Explorer" in Germany, too.
This is a big major pain in the *ss here in Germany and an obvious abuse of German law. They are going after the little guys by sending their bills to site owners and those who merely mirror a site. Recently, c't, a major German computer magazine, put a few applicates which used "Explorer" in their name on a CD-ROM that came with the magazine. This has promptly started a legal battle which began by threats to sue every single newspaper shop in Germany selling c't.
This lawyer has become a bit of a persona-non-grata in the German net community, but he himself really enjoys this fame and status and brags a lot about his new "Explorer"-related court cases in the German usenet groups de.soc.recht.misc or de.soc.recht.datennetze. In fact, I am sure that he'd love to know that folks talk about him on a foreign forum.
Anyway, all this madness has lead to a disturbing trend of everyone threatening anyone else to sue about a product name. Try to search for "Abmahnung" on Dejanew or in the Heise Newsticker.
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