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Trademarks For Open Source Projects?
AilleCat asks: "Recently, the Listar Project was asked to stop using the name 'Listar' because of a trademark conflict with a similar commercial product, ListSTAR, which is understandable, however we've come up with a new name, not to be announced quite yet, until we find out how to protect ourselves from a similar thing happening. Seems in order to hold a trademark, the product needs to be used in commerce. Since we are a small non-commercial free software project (core team of 5 members, and a few other developers), we cannot get a trademark. Someone suggested selling burned copies of the software, but I'm wondering if there are any low-cost ways of protecting ourselves from someone naming a commercial product something similar to our new name, that does a similar thing (like in the case of Listar and ListSTAR) and taking it from us. I wonder how many other Open Source projects are in danger of this happening as well."
IANAL, however, you SHOULD qualify for a *servicemark* which is exactally the same as a trademark, except for a product that engages in no commerce...
Wait a minute here... /. gets in a tizzy about SSH complaining about OpenSSH; but they want to be able to use the same law against a corp.
Hmmm... that seems a bit two-faced, I'm against it when it favors the company, but I'm for it when it is against a company. What's it going to be? If OpenSSH isn't be a problem for SSH, then nobody can bitch when a company makes a product and names it samba2. If people wan't to prevent a company from advertising a commercialy named "samba2" product, then OpenSSH will probably need to make some consessions to the SSH guys.
Why can't one of you (or someone you trust) trademark it?
I'm not too familiar with the law, but I know I've seen trademarks for such projects.
"Linux is a trademark of Linus Torvalds"
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pb Reply or e-mail; don't vaguely moderate.
pb Reply or e-mail; don't vaguely moderate.
Would it coount if someone else sold it? Say if cdrom.com put it on an open source cd?
Just get your product shipped with a commercial ;)
Linux distribution. Boom, you're product is in
commerce.
1. Use the US Patent and Trademark search engine at http://www.uspto.gov/. There may be similar resources in other countries.
2. Do a Web search. This is not a substitute for the search of registered trademarks, but it may help you avoid other bonehead maneuvers.
Regardless of whether you think patent and trademark laws are being abused by corporate interests, et cetera, you should perform these steps out of respect for your potential users. Well-chosen names will help people find your (free or not) product.
Maybe just name it "ALL YOUR BASE ARE BELONG TO US"
You can encorporate here for $75. And the Delaware Chancery Court processes this kind of stuff faster than any other court in the nation, if not in the world.
Remember the old "Get Smart" TV series? KAOS was incorporated in Delaware, for tax purposes.
--Charlie
This is weird: You have to use your product commercially in order to get a trade mark, but even if you're using a name non-commercially you can be forced to stop using it.
We need bugtraq for our legal system.
Actually, McDonald's tried to get him to change his name, at which point he pointed out that his restaurant had existed before McDonald's establisehd their first restaurant in Scotland (He was Scottish). He then threatened to force McDonald's to change the name of all of their restaurants in Scotland. Funny enough, McDonald's left him alone after that.
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Sheesh, evil *and* a jerk. -- Jade
What was the original? I saw the "remix" linked to from blue's (which was hella funny) but don't know what the original was...
I mean, seriously... if you're writing open-source software and don't have a dumb/geeky/clever name for it, how good can it be, ya know? :-)
I'm pretty sure that's a myth. It's so easy to fake that courts don't pay any attention.
--
Patrick Doyle
Patrick Doyle
I mod down every jackass who puts his moderation policy in his sig. Oh, wait a sec....
Well, what did Linus do to trademark "Linux"? Presumably he faced the same issues.
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Patrick Doyle
Patrick Doyle
I mod down every jackass who puts his moderation policy in his sig. Oh, wait a sec....
How about calling your project MAGGOT or A--HOLE?
No it isn't. What conflict have they demonstrated? What evidence of marketplace confusion is there? They can certainly request you change your name, but that doesn't mean they are on any solid legal ground in doing so (IANAL, of course). A company did a similar thing to my company, and we politely explained that use of the word in question did not violate their trademark but they were welcome to continue legal proceedings. They wisely didn't.
Looking at the ListSTAR trademark in question, an argument could be made that Listar is not "for use on personal computers". Your software clearly isn't intended to even be run on Macintosh computers. Their whole issue seems to be the use of the word "list" (feature description) in the name of the software, which I don't think will prove to be sufficient if challenged. The marks themselves are not particularly similar, and I can't imagine how the marketplace confusion would be exist. Politely decline their request based on that reasonable argument and it's unlikely they'll continue. They took the action necessary on what might be a possible IP infringement and you've demonstrated that it wasn't; case closed.
Actually sir, while I have a great deal of respect for your product and overall body of work here, I must confess that each "props to all dead homiez" fp is gained the old fashioned way, through the nebulous workings of the Force (as well as conventional advanced weaponry and tactics--broadband, knowledge of /. editor posting patterns, etc.) plus the magical powers bestowed upon all who have a low user ID.
Props to you and the Bone-O-Rama massive however, as well as Ida, Katy, Jamie S (my babe), French Toast, Bob Abooey, Huge ASCII FP Guy, and all the first posters keepin this schitt real in this new century. Do not dismiss us out of hand, for FP is the arena where Science and Art convene!!!
props to all dead homiez
Just a thought, but couldn't you mail an empty, UNSEALED envelope, and then 10 years down the line, after someone else came up with a profitable idea, write a letter and stick it in the envelope and seal it. Then take them to court, claiming that you thought of it first?
And as for other platforms, the Mac and Solaris versions of IE might be free now, but there is no guarantee that will last forever. If Microsoft was ever completely successful in eliminating competing browsers, you could bet that they would start charging for IE on non-Windows platforms.
And from a legal perspective "I would charge for it if I could" is good enough to make the change from a free product to a commercial one? Well, then small groups of people working on non-commercial entities CAN hold trademarks!
Trees can't go dancing
So do them a big favor
Pretend dancing stinks!
The answer's in the story, kids.
Since we are a small non-commercial free software project (core team of 5 members, and a few other developers), we cannot get a trademark.
I don't know about you, but if I saw that happening, I'd go and grab the source, remove all the advertisements, and redistribute it. Even if it were stuff for other OSS projects, I'd probably still do it just because adverts are annoying.
How about the following project names?
/.
LNL (LisTAR is not ListSTAR)
My take on other borderline project names
Micromicrosoft
Ceun
Orekel
EyeBeeEmm
SlashDash, sorry
Anal. I Anal.
Just like the law.
Not a lawyer, and proud of it.
"Everything you know is wrong. (And stupid.)"
"Everything you know is wrong. (And stupid.)"
Moderation Totals: Wrong=2, Stupid=3, Total=5.
True, but they can overlap.
If you copyright(left) a piece of software as BestMailer that is a mail list server and then a company tries to TM BestMailer and they make all kinds of mail software, they can't make you change your name b/c you have copywrite.
The biggest drawback I can see for this immediatly is if you make multiple softwares. Then you don't have a TM under which you release everything.
IANAL, of course - I agree with The Bard.
WHONEEDSSLEEPWHENWEHAVECAFFINE?!
At least I don't think so - if I write a book, but don't sell it, I can copywrite it. So just copywrite the name & then you can let anyone use it you want.
Should work just fine.
That, or copyleft it (should work about the same, but nobody's tested it in court, I think).
WHONEEDSSLEEPWHENWEHAVECAFFINE?!
Trademarks are intended to prevent confusion among competing businesses. For example, say I have a successful company trademarked Foo. Someone comes along and decides to create a company that competes with me called Fu. If I can prove that because of the confusion between his name and mine, I am losing business, and because my company is trademarked, I have legal grounds to dispute Fu for trademark infringement. This does not apply to people that do not make a profit, as you can not show lost profits to competitors with similar names. However, if a trademarked business can show that it is losing profits to a competitor, whether the competitor's product is free or not, the competitor would be in violation of the trademark.
As always, IANAL, most of this stuff was picked up from reading about the recent SSH/OpenSecSH debate.
Every company that I have worked for has had someone perform a trademark search when they were contemplating releasing a new product. Some ideas would come back in tatters, while others were wide open.
This task is typically performed by a lawyer, although you can pare down some things by checking for the trademark you want at the U.S. Patent and Trademark Office.
Chivalry is not dead, it's just frequently misspelt. - M. Langley
In any event, the silly rule about using it for commercial purposes should not apply to protecting a name.
--
Twivel
I suppose "listarine" is out.
Table-ized A.I.
IANAL, but I believe you could use a service mark; it doesn't require you to sell anything tangible. It is undeniable that you are offering a service.
illegitimii non ingravare
It doesn't matter what commercial use? Put a store on the project page that sells project buttons. They can sell at cost. Heck, you just have to try and sell them. You then have commercial use.
Better calm down, or...
WAR WAS BEGINNING !!
Teehee! Sorry, I actually remember that game, so I had to laugh when I saw the references. It's a sort of cult thing now, I guess.
Where's the submit button??
The trademark in question must be used in commerce.
Do whatever you can to associate your name with money somehow.
A support contract would be my reccomendation; it could even be a start at generating revenues from this project.
I believe Microsoft has provided the option to buy IE. I think I have seen a retail package of IE before, and you probably can request that they send you a CD of IE for a cost. Xiadix
Better yet, make it an -ads option. Makes the commerciality even more superficial, undercuts the motive for removing ads and redistributing.
Free, legal music for iTunes users.
If you're interested in preventing others from using your mark, then even if you're making free software, you may want to ask a lawyer whether advertising paid support or consulting services for your product or selling books about the product would constitute enough of a commercial interest to garner trademark protection.
Remember that you get a fair bit of trademark protection just by using the term in commerce, even if you don't register with the PTO.
I always thought XP was short for Cross Platform, which make "Windows XP" the most f...ing riduculous name ever to come out of Microsoft.
*WinCE* was a pretty unfortunate name though. Of course as previous Slashdot threads have suggested they cannot copyright an Acronym only the "WindowsXP" one word combination, not that will prevent the inevitable frivoulous lawsuits.
"Windows combines CE ME NT, to provide their most solid OS yet, WARNING: May take considerable time to dry."
I'm not a lawyer, but I used to tell lawyers where to get off when I was the Trademarks portion of the Corporations and Trademarks division of a Western state some years back. In other words, this is what the staff lawyer had me tell the outside lawyers, who generally charged $1000 for a state filing that went for $50, and more often than not could not follow simple directions on a one page form. The federal form is similarly simple - hiring a lawyer for trademark filing is foolish, the ones practicing in this area mostly do so because they can't handle real law, and even this stuff challenges them.
... but that's getting outside the scope (and varies by state law - in many states you can just write up something declaring your partnership in the trade you're using the mark for and voila!).
Trademark is based in common law, and depends on first use in a particular product or trade category. You can also register it federally or in individual states, but this is essentially to have proof of use on file, it isn't what actually establishes the mark. What we required with a filing is a copy of the mark as it is in use. What we wouldn't accept was something just hand written - just not credible.
Now, there's also a difference between just using it in one state and interstate - you want interstate for the federal rights. As for the folks posting here saying you should incorporate - can't see why, corporations have no more rights here than individuals or partnerships, and partnerships have a common law basis too
If you have proof of first use of a mark in trade, and someone else comes along and registers it later, you can appeal their registration and get it thrown out. It's all a matter of how you pin down proof. You want to get the mark printed up looking professional, use it in conjunction with your goods or services (the more sorts of goods and services the better), and send a few copies of this use by certified mail to yourself, which you then keep unopened, for starters. Basically the trick is to get a bunch of stuff firmly dated - a notary public's stamp on a few items can help here too.
The need to enforce a mark that other folks are citing here is real too - but it applies if your concern is to keep it a trademark, not so much if your concern is to keep others from using trademark to deprive you of it. If your concern is just to keep use open, then having proof of use prior to anyone else's in interstate trade is enough to get anyone else's attempt to own it thrown out (there are filing fees for the challenges at state level, but they're reasonable - not sure on the federal procedure). Isn't that the main point with open source?
"with their freedom lost all virtue lose" - Milton
It seems to me this whole trademark/copyright stuff is getting way way way way out of control and extremely out of hand. I agree these copyright holders/trademark holders have legit claims to some extent, but lately it's getting silly. At the rate it's going, it's getting dangerous..
If afreeware product came first and was well-known in the industry, a commercial company's application to register a similar mark would most likely be denied on those grounds. Applicants can appeal, but I have seen applications that have been denied for this very reason. There are many marks, the Cathoic Church for an example, that are not trademarked and are not owned by a commercial entity (yeah okay that's debateable but not by me and not here ;-) yet no commercial enitity could register because of prior use. In the case at hand though, the mark was already commercially registered--different fact pattern.
this is just another technique that corporations are using to wage war on open source projects, whether they threaten said corporations' income or not.
Blessed is he who expects the worst, for he shall not be disappointed.
true ... but also many of these folks fail to defend themselves. Getting, using, and defending aggressively a domain name can't hurt, it seems to me.
sulli
RTFJ.
No -- Putting TM next to a mark is in indication that you are claiming trademark rights in the mark. There is no such thing as a "trademark pending" sort of symbol. The (r) should be used solely for registerd marks, but if you don't want to register a mark you can rely on common law rights of first use and notice (using with the tm symbol) I recently prepared a trademark application for a bank whose dates of first use nearly predeated the civil war. -- Trademark rights are createted by use not by registration Kinj
stickers or other branding materials would also be valid, and help spread the word.
is to register as a trademark. Without registration, you have some rights, but it's nowhere near as good as a registered trademark.
I wouldn't worry too much about the "use in commerce" bit. If you want to, follow what some people have said and sell a copy of your work. But I don't think it's absolutely necessary. "Non-commercial" uses of trademarks are usually defined as uses in "expressive" forms that aren't a part of a commercial transaction. Non-commercial uses are usually not actionable as infringement, but they're also not trademarkable. In your case -- but of course it's certainly arguable -- I would think that open source projects are less forms of expression and more like regular product development with no fee. (This is why, incidentally, ListSTAR asked you to stop using Listar -- if you weren't "commercially using" Listar, you wouldn't be infringing.) No one ever said that commercial use means that you have to get money for your product.
[disclaimer: this isn't legal advice. I'm only pointing out some information that you might find useful. For legal advice, hire counsel and tell them everything they need to know.]
Domain names and trademarks have a weird interaction, so even having, say, listar.org would probably not help. Aside from the Anticybersqatting Act, Trademark Dilution laws tend to cover domain names/trademarks, and the dilution laws are -- to say the least -- big-corporation-oriented.
A trademark is a word or designation that is distinctive of a persons goods and that is used in a manner that identifies those goods and distinguishes them from the goods of others. A service mark is just a trademark used to identify services as opposed to products. THey follow all the rules below. Goods are items in the stream of commerce which does NOT mean that you have to -sell - a product so long as you use the mark in the marketplace. A project name with a dedicated website and software distributed under the name could easily qualify as use in the marketplace. Trademarks are acquired by use and do not have to be registered, but registration conveys some significant advantages including special damages, attorney's fees and a valid trademark presumption in favor of the registrant. The R (registered) and TM do not have to be used, but again confer certain rights on vigilent users. Keep in mind that similar terms can be used for divergent uses. In other words, you can have Eagle Candy, Eagle Publishing, and Eagle Clothing all coexisting with valid trademarks for different products. Also remember that fanciful marks are highly protectible (Ebay for auctions) and that generic marks are usually unprotected (Auctionblock for auctions). It is not enough to run a rudimentary trademark check on the USPTO website. A trademark house like Thompson and Thompson should be used to check commonlaw trademarks which could pre-empt your use. Remember - registration is NOT a race to the USPTO. A commonlaw use can have certain prior rights. I urge everyone to properly clear marks BEFORE they start using them (XBOX ring any bells?). It is not too exspensive compared to getting slammed for using anothers mark. A small business can expect to pay about $2,000 to clear a trademark properly and the majority of that fee will be the cost of a well-designed trademark search from an accredited firm.
TM is something you can decide to use yourself.
(R) means registered and must be actually registered with the relevant registration office.
I found this TM FAQ that gives more info.
-nb
I'm still trying to figure out what people mean by 'social skills' here.
While I would like to see open source projects being able to easily block trademark infringement allegiations by referring to "prior art", it doesn't seem to hold here.
-Marcel
PS: IANAL, but isn't the use of the "TM" symbol open widely (i.e., without registering and paying), and just the "(R)" requires these hassles?
And if any contender should come about who would seek to steal your mark, then this again would be an issue of attorneys and who is the more voracious and determined. You would certainly be in a far superior postition should you go to the effort of registering your trademark(s).
This is a message to all companies: "Live and let open source live."
"Ancillary does not mean you get to rule the world." --U.S. Circuit Judge Harry Edwards, speaking to the FCC's lawyer
It seems to me that as an open source project, trademark law does not really apply to you. An open source project is not using a mark as part of commercial activity. It is simply a group of people getting together to work on a peice of software for their own pleasure and enjoyment. You can call your software whatever you like. Call it Microsoft, Sun or Bob Dylan. Companies have rights to the use of their trademarks in commercial activity, not a blanket prohibition on anyone using their mark for any purpose.
Now of course if you have ambitions for your open source project that may take you into commercial endeveaurs, it is probably wise to establish a name and trademark it. However it certainly does not seem a requirement.
That was the whole point of the -noads configure script option comment. That way it would just be a superficial commerciality. And I said other OSS projects so they might be able to cook up some kind of advertising trade agreement or something.
There is at least one company, Cheapbytes, that sells "Red Hat Linux" on a CD. However, they clearly label it as a "Cheapbytes CD containing the downloadable version of Red Hat Linux" (or something like that), and they add a file or two of their own (a Readme or something). Apparently since you could download and burn it yourself, you can also pay them to perform this service for you as long as they clearly label what you are getting.
Teen Angel - a Ghost Story
There is at least one company, Cheapbytes, that sells "Red Hat Linux" on a CD. However, they clearly label it as a "Cheapbytes CD containing the downloadable version of Red Hat Linux" (or something like that), and they add a file or two of their own (a Readme or something). Apparently since you could download and burn it yourself, you can also pay them to perform this service for you as long as they clearly label what you are getting.
Teen Angel - a Ghost Story
It seems to me that words are fscking everything up in the information age. Can someone please hack-up a good mind-reading app so we can start building a neuronet and get past the use of English (or any other language)words?
"I've seen plays that were more exciting than this.
Honest to god... Plays!" Homer Simpson
I've looked at the ListStar trademark, which is: Status: Registered Primary Class: 9 - Computer programs, electrical and scientific apparatus Classes: 9 - Computer programs, electrical and scientific apparatus Goods & Services: COMPUTER SOFTWARE FOR CREATING AND MAINTAINING LIST SERVER MAILING LISTS AND ELECTRONIC MAIL-ON-DEMAND SYSTEMS ALL FOR USE ON PERSONAL COMPUTERS Serial No: 75209386 Reg. No: 2127079 Filed: December 6, 1996 First Use: March 15, 1995 First Commerce: March 15, 1995 Registration January 6, 1998 Obviously the TM was registered in 1996 before the Listar project began, and it covers precisely an area of trade covered by Listar's service/product. Any person who was not aware there are two similar organisations with similar products, though with very different intent, could reasonably confuse the two. So yes, it's a clear TM infringement. Sucky, eh? You just have to register your own name, and sell one copy.
That sounds like a job for the FSF.
I got my Linux laptop at System76.
It may only be free as in beer but it is free.
Last time i checked, IE 5.5 could be downloaded for free, and installs whithout problem on win95...
From all pieces of Mandrake (printed) documentation: "Linux (R) is a registered trademark of Linus Torvalds"
Linux is obviously a non-commercial piece of software, so it must be possible.
Hi! This is the Sig, blatantly attached to the end of this comment.
From the "didn't-we-mention-something-about-them-being- scared" department. :)
"Ummmm..."
Exactly, that's why there can be Infinity the luxury car company, and Infinity the speaker company...
Carpe Cerevisi - Seize the Beer
Have you considered contacting the Trademark office? I have contacted the Secretary of State's office many times with "Can I...", "How do I...", is _____ an option... Surprisingly, they answered all my questions and were really helpful.
Perhaps you could email them and say, "We are making and distributing a product for free. How do we trademark it so that we can create a presence for ourselves?"
Or, can you give away free products as a way of making a name for your group as a software company -- like PowWow/TribalVoice did?
http://www.google.com/profiles/malachid
You trademark the name. If anyone wants to challenge the new name, I start breaking kneecaps.
Simple enough. One sale is all it takes.
Or even easier: Start your own company, and make each person on the team buy a copy for 1 dollar each.
-"If I wanted your lip, I'd rattle my zipper."-anon.
How you proceed depends on how strong your trademark is. If it's distinctive and fairly unique (Kodak film), and your the first to use it, you can protect it as a strong trademark. If it's general (probably not in your case) it's a "weak" trademark (Al's Car Repair), and although you can't stop other people from using it, they can't stop you either.
If you have a strong trademark and want to protect it, the "Legal Guide for Starting and Running a Small Business" by Fred Steingold (Nolo) suggests:
1. Use your trademark as a proper adjective that describes your product.
2. Always capitalize the first letter of your trademark.
3. If your trademark has been placed on the Federal trademark register, consistently use the (R) symbol (I think other people have already chimed in with advice on what you can do to make it "commercial" and able to get put on the register).
4. Take prompt legal action if other businesses use your trademark without your permission (I'd expect a polite letter, sent certified mail, would be fine. Remember to keep a copy of the letter).
The book also talks about how to search for people who may already be using a mark you wish to use. The Trademark Electronic Search Service can be found on the U.S. Patent and Trademark Office Website . This lets you do a "direct hit" search (see if anyone else has registered that exact name). There is also a (pay-per-use) search engine called SAEGIS at www.saegis.com that can do analytical searches that look for marks with a similar name. I haven't used SAEGIS so I don't know how much they charge, but it may be worth it if you want to make absolutely sure no one else has a similar trademark.
Why constrict someone (or a group) to this if they can't even trademark a name for themselves? That's basically saying "Piss on you, We won't let you have this name, but someone else can come along, trademark it, use it, and fsck you over."
Is it me, or does that seem completely unfair?
-Caino
Don't touch my .sig there!
Nonprofit isn't all that easy to obtain, you have to fall into certain categories to do it. Not-for-profit is a lot easier to attain. I've been employed by hospitals as a researcher in order to give them the kind of research element they needed to add to achieve nonprofit status; that status has tax advantages and so corps want to get it.
Grayhaired.www.phperl.net/gen/gen.php3
that thing creates all the words you need - be sure to read the help section to understand their philosophy.
keep it simple.
"(b) the goods are sold or transported in commerce, and "
This indicates that a trivial sale is not even necassary, simply having goods that are transported interstate is sufficient.
"I drank what?" - Socrates
[Apologies in advance for any cultural mistakes; this is my inital posting, and visit].
... or try . Spending $25 on and a few hours with the book will go a long way to clarifying things, helping you do the Tm right, and substantially increase the bang-for-buck you get should you engage a lawyer.
Note: IAAIPL, I am an IP lawyer ('tho long ago an academic in math/comp sci). That said, unless there are unusual unmentioned facts, the is not a big problem here and folks have introduced unneeded complexity. [Apologies too if this post becomes lengthy; quite a bit of misinfo' among the posting so some clarification seems helpful).
1. "in commerce" is a term-of-art -- it doesn't mean "commercial" in the "money-changes-hands" sense, i.e., most goods/services/information can support a trademark. Consider the many familiar charities and other public service activity, as well as free magazines and newsletters (some w/out advertising). E.g., I seem to recall a decision deciding ownership of a Tm for an annual improve-the-neighborhood block party!
Ex: (closer to Open Source): I'm doing a Tm for an academic project that's to build a database of information in a particular scientific field. The lead professor thought up a good name, and the US Patent & Trademark office has approved it. The info will be free, the contributors are volunteers. No money involved. No problem.
In a word, open source per se isn't a fatal issue. The name of course has to be used in a Tm sense, to identify goods or services (e.g., to use it only as XYZ, Inc. won't cut it), and in interstatae commerce, which likely will be the case if your website and copies of the software are provided over the internet.
2. Problems down stream: infringement occurs if multiple dimensions to intersect - the basic test is confusing similarity, not just in the choice of word but in eyes of the marketplace (which usually means closely allied products, channels of distribution/advertising, and -- as implied by the posting about the "Fitness Factory" -- sometimes geography).
3. I'd suggest the following as prliminary steps now (needless to say, none of this is specific legal advice since there may be additional facts and law that comes into play). That said:
a. Get the Nolo Press book (exclusively) on trademarks (B&N, Borders,
b. search your new name on the internet and at www.uspto.gov. If you get thru that but are insecure, there's Thomson & T's cadillac search for about $370.
c. I'd take some exception to the otherwise useful post by wyctld that a Tm is just filing out a form. In some cases it is, but often there are judgements to be made that require thought, perhaps experience or they'll come back to haunt. The Nolo book will help in this regard.[metaphor, your code is more likely to run well if you know something about the machine/compiler]
d. The Tm filing fee is now $325, not $250 anymore.
e. A small amount of specific legal advice is probably a good idea, may is necessary. Just be sure the lawyer is (1) versed in Tm's; and (2) sensitive to the needs of projects and small business (preferably s/w).
3. You may find free legal advice if your city has some technology entrepreneurship promotional org's. They often have workshops and other events that include intellectual property discussions, Q&A, etc.
cheers,
lexyber (mkrieger239@aol.com)
Simple: Just ask the Free Software Foundation to be allowed to use GNU in front of your software's name (of couse, change it to something other than "Listar" first). I'm sure they will be more than happy to include your software in their directory as well.
Mine came first, and I'm not giving up nuthin...
Well for Redhat et al Open Source is about trade, but it may not be for you. As for your example Red Hat does have a trademark on the term Red Hat at least as it relates to computer OS's.
You can't sell a CD and call it Red Hat Linux. And you can't sell a CD and call it "Red Hat BSD". Now you can create a BSD distro based around RPM and other free software written by Red Hat.
The basic idea of Trademarks is that when you see a product with a given name or logo you should know that it comes from the people you expect it to. If I go to the store and buy a Red Hat CD I can have confidence it is from Red Hat and not some guy who was burning CD's as a hobby. Similarly when I go to the store and buy a bottle of Pepsi I can know that what I am getting is really Pepsi.
Erlang Developer and podcaster
--
However, this can irritate the local cops, so I wouldn't recommend it.
The second alternative is to find a computer lawyer who works on no-win, no-fee, and challange the trademark.
IANAL, but if these people waited to challange you, then they lost their trademark.
Also, you CANNOT trademark words or phrases in common use. (Amstrad tried to trademark the word "Tower". Didn't get far.)
Most important of all, find some lobby group or other vocal organization that can hit them where it hurts - in the chequebook.
Any company is likely to reach a compromise if it finds it's shareprices or profit margins are likely to suffer.
It's ironic, but true, that in the "free market", an ounce of menace is worth a tonne of freedom. You just have to growl loud enough, and they'll back off.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
How come, you cannot register a trademark if you do not intend to make a profit of your software, but the same not-for-profit software can still be in violation of other trademarks?
Also, how can Microsoft claim a trademark on Internet Explorer, if they are giving it away for free?
Trademark exists to protect consumers from confusion. If I'm distributing a genuine copy of Enlightenment, there isn't anything confusing me about calling it Enlightenment. I can certainly use the term "Microsoft Windows" to describe the system I'm using right now, and if I sell my computer, I can say "Comes with a licensed copy of Microsoft Windows" (assuming it actually does). You can use a trademark all you want to describe the product or service the trademark applies to. If I buy a new copy of Windows and don't open it, I can print up advertisements that I'm selling a copy of Microsoft Windows. As long as there is no possibility for confusion between the product or service the trademark applies to and something unrelated, everything is fine.
This situation has actually come up. SourceGear has trademarks on AbiWord and related Abi prefixed products. SourceGear makes the trademarks available under certain terms. If I want to fork AbiWord and not agree to those terms, I have to give it a new name. If I didn't change the name, there might be confusion between my AbiWord and SourceGear's AbiWord. I can describe it as "Based on AbiWord," so long as I'm careful to not imply that my product is AbiWord (that is a grey area, however).
Search 2010 Gen Con events
If they were ever completely successful in eliminating competing browsers why would they continue to provide it for Windows for free?
That whole "the browser is an integral part of the operating system" argument would fly right out the (you'll pardon the expression) window the instant that they thought that they could make more money the other way.
I see even classic Slashdot is now pretty much unusable on dial up anymore.
Does that hold true for that other unscrupulous outfit as well? The one over in Blue Cove?
I see even classic Slashdot is now pretty much unusable on dial up anymore.
For the trademark to have been "used in commerce", there has to have been ONE well-documented transaction using the name. Sell ONE copy of your CD to someone outside the group (not a relative), make sure you get a receipt, and now you have used your trademark in commerce. This is done all the time.
- Junk
- Crap
- Bunk
- WillBreakAsSoonAsYouGetIt
- Scum
- Crud
etc. This has the nice added bonus of being a slap in the face to all the commercial products with advertisers scratching their heads trying to come up with "catchy" names and jingles for them. While you're at it, make your offensive name be a recursive acronym too:- Software
- haplessly
- iilluminating
- turds
For, say, a spam filter.--Bob
1^2=1; (-1)^2=1; 1^2=(-1)^2; 1=-1; 1=0.
I know that there are a lot of projects that provide support services for their product for a consulting fee. This would certainly provide some revenue and would get you the trademark you need.
Talk to a lawyer!!
Also, how can Microsoft claim a trademark on Internet Explorer, if they are giving it away for free?
Well, the Windows version of IE isn't really free, it is included in the price of Windows. It is kinda like saying the ashtray in a new Ford Explorer is free. It isn't, you pay for it when you buy the truck, and you can't buy the truck without the ashtray. Not a perfect analogy because if you lose or break the ashtray in a truck you'd have to pay for a replacement, but the cost of replicating software (download) compared to making a physical object is the difference.
And as for other platforms, the Mac and Solaris versions of IE might be free now, but there is no guarantee that will last forever. If Microsoft was ever completely successful in eliminating competing browsers, you could bet that they would start charging for IE on non-Windows platforms.
Here is the procedure for creating a Trademark Stick (TM)(Pat. Pend.)
/me grants any natural person (not corporations) permanent and non-exclusive right to use the name Trademark Stick (TM)(Pat. Pend.) and manufacture Trademark Stick (TM)(Pat. Pend.) in furtherance of the education of the clueless, or for any purpose whatsoever.
Acquire a cylindrical object approximately 1 meter long and between 2.5 and 10 centimeters in diameter.
Said cylindrical object should be made out of hardwood or metal. The heavier the better.
Affix several strips of cloth tape to one end to ensure a good grip.
Trademark Stick (TM)(Pat. Pend.) is used to "educate" clueless USPTO employees, lawyers and others who believe it is possible and appropriate to trademark such common words as "the", "an", "it"; state names, like Kentucky (TM), and individual's surnames.
Any similarity between Trademark Stick (TM)(Pat. Pend.) and Cluestick (TM) are in the mind of the observer and not valid as prior art.
In return for general good feelings toward ones fellow human beings (except the clueless),
This exchange of consideration shall be considered a transaction for the purpose of establishing the commerce requirement of the pending Trademark Registration (TM) of this product.
War is Peace. Freedom is Slavery. Ignorance is Strength. - George Orwell or George Bush?
How about The Extreme Programming guys.
How about Roland. My brother has an XP-50.
XP is way too generic. For one, it has only two letters. There are always a lot of generic things two letters could stand for sensibly. Not so with four or five. I might as well trademark the letter F.
Then again, common sense doesn't seem to prevail very much lately in matters like this.
In related news, MIT's Tech Model Railroad Club filed suit against Microsoft for using their own mark within a legal document used in a suit against the US DOJ.
An outraged senior member was heard saying, "all they did was throw some fscking parantheses in there. Those bastards won't get away with this."
TM is a mark that can be used by anyone to indicate that they consider it a trademark
Circle R is what you get to put on when you are Federally Registered with the USPTO
Don't post innacurate information
If you do, I swear by my pretty floral bonnet I will end you.
Better not. If you do Sega will set you up the bomb.
Trees can't go dancing
So do them a big favor
Pretend dancing stinks!
Considering people who use their surnames as domain names have ended up in lawsuits with firms of the same name, I doubt it'd be good for anything.
Um... just burn a copy, and I'll buy one for a few bucks (then it's used in commerce). Anyone else?
I had no idea that a trademark was applicable to something which was non-commercial. For example, somone has trademarked my last name. But it's my last name and I'm not a commercial entity so there's no conflict. I'm allowed to use my name whenever I want to. Including putting it on any software that I write, or businesses that I run.
Also, keep in mind that a trademark only applies to something which is *similar in functionality* or *similar in commercial venue*. IOW, if you have a name which is similar to an existing trademark, but your name refers to some open source text editor and the trademark refers to some fossil-fuel refining equipment then there's no sort of infringement. The idea about infringement is that it has to be difficult for a stupid inbred American with an IQ of 80 to mistake not only because the names are similar but also because the functionality or application is similar.
Why exactly did Ximian need to change their name to, well, Ximian? From what I understood from the press announcements, they changed it to be "legally defensible". But what was wrong with Helixcode? It seems like a 1pretty unique trademark, and I haven't heard of any other software companies (or biotech companies) that have a similar name.
There is a distinct difference between 'copyright' and 'trademark'. You cannot claim a copyright to a name, you claim copyright on a 'work', such as Linux, or a book, or a poem.
Trademark is protection for a name, symbol, or other 'mark' used in trade. Thus the restriction that a trademark must be 'used in commerce' to be valid (registerable).
In U.S. law, your copyright protections are automatic, and do not need to be registered. Trademarks generally need to be registered, and with the exception of 'famous marks' (IBM, Porsche, Microsoft, etc), are limited to a specific market.
For example, it is possible for 'listar' the mailing list software to co-exist with 'listar' the toothpaste for cigar smokers, and not have a trademark violation. But because 'Microsoft' is a famous mark, if you decided to make small chewy cookies as 'Microsoft bakery', then Microsoft the mega-software company has a case against you.
I do not deploy Linux. Ever.
I recently spent some time trying to figure out if I needed a trademark for a tiny company I was starting up. (Eventually I gave up and named my company after myself.) In the process of looking into it, it became apparent that I had to worry not only about the desired name already being trademarked, but also whether or not it was in use without having been registered with the USPTO or any state -- that is, whether or not it was a common law trademark. Unless an actual lawyer cares to contradict me, I think this implies that holding a common law trademark is in some cases sufficient to prevent a confusable business from trademarking your name. I'd imagine in practice companies with big fat lawyers get just about whatever they want, but that's just a guess.
I guess my point here is that if your goal is to prevent some other company from stealing your name, there may be avenues simpler than getting your own trademark registered. Of course figuring out how to do this effectively would likely require the expensive services of an IP lawyer. The punch line is that the reason I never registered my own trademark is that even superficial consultation would have wiped out my profits and then some. So although consulting an IP lawyer is probably the right thing to do, it's not always an option for a freeware development team.
Whilst in this case the name was in use before the "free" project decided to use it, in general, this problem would exist if a trademark is not recognised as such until commercial use is made of the name.
Salocin.com
I applied for a trademark in mid-1997 and am still awaiting final approval. The trademark process is very interesting, is quite complex, and does take quite some time.
Many people confuse trademarks and patents. A trademark or servicemark is simply a means of identifying a specific product. There is nothing nefarious or even anti-competative about most trademarks (exceptions ignored). The trademark truly does protect consumers from unscrupulous people who attempt to pass-off inferior products or services using a well known brand name.
Also, a trademark does not globally restrict use. For example, when filing a trademark, the mark must be filed for a class of services and is ONLY grated for the class in which it was filed. There are literally thousands of these classes. Also, the mark granted is usually just for the illustrated appearance unless the mark is a strong mark. For example, I may file a trademark for my fooBar candy bar. The mark may be denied? Why? fooBar is relatively common and, therefore, a weak mark. If, however, I filed a mark for my fooBar logo (not just the text fooBar), the mark might be granted. Confusing? You bet. Trademark law is extremely complex. Even if I file a trademark for fooBar candy, I will need to select a class of services. This is consistent with the purpose of a trademark -- to identify specific services. I might select a food product -- confections class. Two years later, a different company files a trademark for fooBar Software. Nothing I can do as long as they do not use my logo or a similar facsimile thereof. There is nothing unique about fooBar. If you want to protect a text and logo, then you must elect a strong trademark. These trademarks are where we get Itanium(TM), Athalon(TM), etc. or unique names. Again, back to the purpose of trademarks -- identifying services and preventing consumer confusion. Trademarks are not like patents -- where patents restrict and stifle ideas. My only reservation about trademarks is that large companies seemingly have an advantage for filings. This does make some sense if a trademark is only to protect an investment in building brand awareness but can serverly impede new companies from developing a viable brand and receiving a trademark.
The other way to establish a trademark is through public use. Many of you may remember that McDonald's got in a big fight with a little girl and her father who had registered the trademark "Nothing But Net" some time before all those McDonald's commercials. The problem was that the little girl (who technically held the trademark) had never used it in a very public fashion; but McDonald's had never tried to register the trademark.
So what I'd do is check to see if there is an official trademark on the name you want to use. If there is, find another; you're probably out of luck. If there isn't, just make sure you throw up a dated web page showing that you are using the name publically as of some certain date. The publicity aspect of trademark protection is thus granted, and you should be fine.
Needless to say, IANAL.
MyopicProwls
MyopicProwls
My homepage
Laugh if you like, but is Microsoft going to give Mozilla flak for having XPToolkit, XPApps, XPCOM, etc.?
tcd004
Guts of the Pentium 4!
Stockphotos
It doesn't matter anyway, what I mean to ask is what would happen if a Linux company created an Open Source project, and made the code free, but trademarked the name? In the world of brand names and so on, that could give them quite an advantage. It would also be an affront to the spirit of Open Source and Free Software.
Yeh, that would be terrible, It would be Linus trade marking "Linux" or something. Oh wait, he did...
Amber Yuan 2k A.D
"and dear god does this website suck now." -- CmdrTaco
That seems to be the approach taken by the Gnu's HURD kernel. It sounds like a combination of "Hurl" and "Turd"
Amber Yuan 2k A.D
"and dear god does this website suck now." -- CmdrTaco
Even if you don't sell the item, you can still register a trademark to identify the item. If one is distributing something it is arguable for these purposes that they are "in commerce" even if the price being charged is zero.
(These are the rules in the U.S. Some other countries make the first to register a mark the owner even if they never use it.)
Also, even if two marks are very similar or even the same, there is only a right to exclude another if there is a possibility that people would be confused as to the source of the goods which the mark covers. If there is no possibility of confusion, there is no right to exclude use by someone else in a non-confusing manner
I believe that Watchtower is a trademark for the free publication given away by the Watchtower Bible and Tract Society, yet the magazines are free. They also issue a magazine called "Awake". The First Church of Christ, Scientist has registered their church seal (they use the (R) symbol by it). So just because one doesn't charge for the item doesn't mean one can't register a trademark for it.
The biggest issue probably is the $250.00 that it costs to register a trademark in the U.S. If one isn't sure, you could always register the name of the product with your state's trademark office for less; this wouldn't provide federal protection but would provide proof of a date of prior use if the issue ever came up.
Paul Robinson postmaster@paul.washington.dc(deletethis).us
The lessons of history teach us - if they teach us anything - that nobody learns the lessons that history teaches us.
Don't ask Slashdot for legal advice. Ask your lawyer.
Are you sure you have to sell something to do a trademark? Does not sound right to me but working on that assumption and for some reason you dont want to burn CDs set up a SSL server somewhere put copies of all your stuff on it and charge people to get access to it and download from it. Of course all of it would be there in the public archive but you would be trying to sell access to your for_pay server and would be a commercial enity. In few of the fact that this , for obvious reasons, would be a low volume site and you would maybe not *really* care if people got access to it it should be cheap and easy to maintain. :)
Cypherpunks: Civil Liberty Through Complex Mathematics. Those who live by the sword die by the arrow.
That's actually fairly funny but a bit obscure? Need to know your video games for that one.. Made me smile though, thanks.
A journey of a thousand miles starts with a brutal anal raping at airport security
You can apply for a trademark if you simply have an intent to use it. Don't make token sales to attempt to establish use! They're a pain to do, and courts routinely dismiss them as shams. Visit the USPTO web site at www.uspto.gov for more information, or contact your local TM attorney.
and start using it ... WIPO crapola notwithstanding, a record of using your domain name would probably be good for something.
sulli
RTFJ.
Seems in order to hold a trademark, the product needs to be used in commerce.
It must be used in interstate commerce in order to get a trademark.
The (tm) just means you've applied for the trademark. It takes ages to actually get one. Once you get it, you use the circle-R.
AFAIK, there is nothing official about the (tm), it merely alerts others that you have applied for registered trademark.
Reminds me of when, after years of actual interstate commerce (back in the mid 80's) the first company I worked for finally was granted a trademark. It impressed upon me how long and hard it is to get one.
Seems like the system works in favor of corporations and against us. But I suppose if just anyone could apply for trademarks all the good ones would be taken, and there would be a lot of potential for abuse, like trademark-squatting, etc. Sorta reminds me of the problems with another naming system we all know about. Hmmm, maybe only corporations should be allowed to apply for domain names? Yeah! That's it! Better write our congresscritters.
Those who can, do. Those who cannot, get their MCSE.
I'll see your senator, and I'll raise you two judges.
Here's my understanding with relevant quotes from Trademark Basics
Trademark is established either via actual use and/or through Federal registration.
Trademark rights arise from either (1) actual use of the mark, or (2) the filing of a proper application to register a mark...
It's generally a first-come, first-serve process, and trademarks can be held indefinitely.
Generally, the first party who either uses a mark in commerce or files an application in the PTO has the ultimate right to register that mark.
Unlike copyrights or patents, trademark rights can last indefinitely if the owner continues to use the mark to identify its goods or services. The term of a federal trademark registration is 10 years, with 10-year renewal terms.
For Federal registration one must engage in interstate commerce, or intend on doing so (and not just be capable of doing so, as the previous poster stated).
Furthermore, it must be state-to-state, or US to Foreign-country commerce. Intrastate do not qualify as "interstate commerce" for Trademark purposes.
An applicant may apply for federal registration in three principal ways. (1) An applicant who has already commenced using a mark in commerce may file based on that use (a "use" application). (2) An applicant who has not yet used the mark may apply based on a bona fide intention to use the mark in commerce (an "intent-to-use" application)....Use of a mark in purely local commerce within a state does not qualify as "use in commerce."...(3) Additionally, under certain international agreements, an applicant from outside the United States may file in the United States
Regarding the notion of a "Trademark Clearing House" as some suggest, I wonder if that might run afoul of this requirement:
The application must be filed in the name of the owner of the mark...
It seems to me that creating, consistently using, and defending a logo for one's endeavors, regardless of commerce, gives you defacto Trademark status.
If you want to Federally register it for further protection, you must sell goods or services from one state to another.
As always, IANAL, just some guy that can read web pages.
-----
D. Fischer
ShoutingMan.com
This may sound pretty stupid to some of you out there, however if you want legal proof that you used the name at a certain time, write a document stating that your company is currently using that name, then send it to yourself through the United States Postal Service. A federally recognized time stamp will be placed on the envelope and as long as the envelope remains sealed you have some proof that you used that name before that specific date.
On the other hand, I suppose there are lots of companies like Red Hat and so on, with thier own trademarked Open Sourse projects. Enlightenment, that cool Windows manager, is a Red Hat project, isn't it? I heard that Rasterman was employed by them, or was it VALinux? I forget.
It doesn't matter anyway, what I mean to ask is what would happen if a Linux company created an Open Source project, and made the code free, but trademarked the name? In the world of brand names and so on, that could give them quite an advantage. It would also be an affront to the spirit of Open Source and Free Software.
If the term 'Enlightenment' were trademarked, other Linux people wouldn't be able to use the term 'Enlightenment', although they would be able to distribute the window manager.
Isn't this a loophole in the law? Forgive me if I have got a few things wrong (I know I have, for sure), but please, I am interested :)
--Anticipation of a New Lover's Arrival, The
Hey all you /.'ers, what do you think about a BrandMark? Branding is exceptionally important these days, even if you're not engaging in commerce. It's important on the OSS level to differentiate between products. It's also important on a personal level. If you build up a brand and promote it, it's kind of like your personal reputation. But if you don't do commerce, ergo can't trademark your brand, then someone else can effectively "steal" your brand by trademarking it.
What we need is an ammendment to the trademark laws that allow brandmarking... reply back and give me some good ideas, then lets write our congressmen...
merlin_jim, the mad computer ninja juggalo
I am disrespectful to dirt! Can you see that I am serious?!
I'm reminded of an urban legend about Coca-Cola. It says that their trademark includes Coca-Cola gum. In order to keep their trademark, they (keep in mind, this is not true), make a single pack of gum a year, ship it to some small store in New Jersey. Then a Coca-Cola employee walks into the store and buys the pack of gum
Neither I nor any other member of the Listar project holds ill-will against MCF for enforcing the trademark. The whole story is simply this:
When I started writing Listar, it was a replacement for Majordomo specifically for my own machines. I called it 'Listar', the Spanish word for 'list'. It wasn't until a year later that 'ListSTAR' came to my attention, since, well, I don't use Macintoshes. I contacted StarNINE, then the owners of the package, and was told 'ListSTAR is defunct and no longer sold or supported, plus you're under UNIX and we're under Macintosh. Don't stress it.' So, perhaps unwisely, I didn't.
Fast-forward two years, to when a company named MCF Software bought ListSTAR from the remains of StarNINE. The product is now revived and thus no longer defunct, and Listar (which can run on the FreeBSD-based MacOS X, where ListSTAR does not) is suddenly both a threat to the trademark and a potential source of confusion. Faroukh Irani of MCF contacted the Listar project politely about the name change and didn't get lawyers involved at all. He handled it very nicely, and should be commended for that. Nor is he in the wrong to enforce his trademark; this wasn't a case of 'the little guy' getting stomped on, this was a case of an unfortunate case where the situation changed and not to the benefit of the Open Source project.
That said, we have gone and picked another (not yet announced) name, and we want to trademark that to prevent future confusion. Our problem is that in looking into that, we've found that it is very hard to trademark something - enforcably - which is not used in commercial trade.
People say 'Linux is trademarked by Torvalds', but that's not entirely true. From what I've found in my poking around, SSC (who publish Linux Journal) and RedHat - both of whom use 'Linux' in commercial trade - obtained the trademark on behalf of Torvalds.
It seems like trademark law is biased against free and open projects, probably largely due to ignorance and outdated laws. The question here is simply... has anyone ever really looked into trademarking an OpenSource project in an enforcable way?
I have no problem with changing the name of this mailing list package now, over the ListSTAR dispute, but I have a great deal of trouble with the idea that I could have the name stolen out from under me again in another three years if someone decides they like it for their own commercial project. Hence the desire to obtain a legal trademark on it. :)
--Sparks
The gym I used to belong to in Pennsylvania was called "Fitness Factory" and I knew the owner quite well.
He had had legal problems several years after founding. He had ordered some business cards for himself and some of the mangement/sales staff with the gym name printed on them, to be delivered to his house. Well, the package of business cards broke open in transit, and the USPS delivery man saw the name of the gym on the cards and took it upon himself to just drop the cards off at the gym which was not far off of his route.
The problem was, the gym he dropped the cards at was "_the_ Fitness Factory." Different gym, almost same name. The major problem? The other gym was owned by a LAWYER.
This lawyer took great exception to finding out that someone had a gym by almost the same name as his and took my friend straight to court(why not, he was his own pro-bono counsel).
These two gyms were separated by about 40 miles and oddly enough, they had both registered their names the very same week several years before, the lawyer's registration preceded my gym's manager by only 3 days.
The judge ruled that
1) the names were even though similar, they were in fact different (the Fitness Factory vs. Fitness Factory)
2) both entities had registered their name in good faith
3) they were far enough apart to be non-competing and therefor there was no consequence to the other gym existing
My gym owner got to keep the name, but only after 20 some thousand dollars in legal expenses.
At least the lawyer wasn't seeking damages at a jury trial! Juries are always such suckers for hard luck sob stories when it comes to tort settlements.
"I drank what?" - Socrates
To follow up on my own post with some additional information
Trademark is like copyright, you can claim it and use it and that is enough to grant you a good degree of legal protection. Sell, for $1, a copy and support for your open source project to a friend, and voila, you have used it in commerce and can now claim a trademark (tm) and/or service mark (sm).
This is generally enough to have staked your flag in the sand, and if you are the first one using it, it should be fine. Things can get messier if someone is also using the trademark, and you both don't know about each other, but otherwise it is generally "good enough" for most purposes.
If you want more protection, you can register your trademark (R). Registering essentially is the US federal government officially approving and granting you the rights for a 10 year period (renewable indefinately). This costs ~$380/mark to file.
More information at US Trademark Basics
Nicholas C Weaver, Winged Rat Consulting
Test your net with Netalyzr
Either that or you should have the right to insist that they don't use a name whose meaning is mainly derived from a product created by you.
Salocin.com
That sounds like it would hurt.
A journey of a thousand miles starts with a brutal anal raping at airport security
In a surprising announcement made today by a Microsoft spokesperson, the software giant said that it was filing a lawsuit against the United States Department of Justice, stating that in many of its legagl documents, the DOJ had forgotten to add "those little (TM) signs" behind Microsoft(TM) product names. "We have counted 53,236 violations until now and are continuing to find more," a lawyer for the company(TM) said. "We are suing for USD50K per violation."
Insiders report that Microsoft(TM) will also be filing suit against Linus Torvalds and "the rest of the dang Open Source movement", claiming that they violated fedral trademark and copyright laws by creating an "operating system(TM)(R)(C)."
Why don't you just sell some advertising for other open source projects, and add a -noads option to the configure script? Wouldn't selling advertisements qualify you to be a commercial venture?
If the guy can't get a trademark because he's not engaging in commerce..then how he can he be infringing someone's trademark? TRADEmark? Get it? If he's not engaging in trade..then why would a company using the name complain?
Something doesn't jive..I think he can get a trademark for his project if he wants..
Any lawyers, law students, etc. help with this... people tent to forget that TM and R are not the same.
Just something to consider.
Hi! This is the Sig, blatantly attached to the end of this comment.
Nobody can stop you from using a name that you have been using since before another company trademarked it.
To make it a bit clearer, if you start using FuzzyMole, then next year a company trademarks that name for, let's say, a sex toy, you can still use it and may, in fact, actually own the trademark without ever having to do anything. The trick is usually proving that you've used the name before in a business transaction, advertising, etc.
Where you'll have to be careful is if you get a company that argues that you have not used the name in a business transaction because you don't sell a product. You'll have to argue that while money isn't being exchanged for your product everyone does get value from developing it.
I recommend that you register as a company just to give you more power.
The global economy is a great thing until you feel it locally.
Said company files for the trademark -- meets commerce requirements. Company immediately opens the codebase, "business" as usual.
This is also handy if inforcement of the trademark is needed in the future, as the company already exists to act as the party being harmed for the complaint. Trademarks not enforced are not held.
Why doesn't someone start a sort of trust company for trademarks for OSS, so that a group can have the advantage of a group that can fight for the trademark's protection without having to waste time that could be better spent coding?
Pay this group a small fee, and they protect the trademark for you. Plus then they could package up the burned CDs needed to qualify as "use in commerce", and the developers wouldn't have to worry.
Is there a reason something like this hasn't been done yet, or a reason it can't be done now?
Also, be sure not to use the words "One" or "Net" in your product. Avoid lowercase vowel prefixes. Definetly don't begin your project with the letter 'J'. Try long phrases or even complete sentences. No one would call something, "Dogs barking wind server outside." Another cool trick is to make up unpernoucable names like:
Someone you trust is one of us.
Just say you will sell support/copies if desired, so that there IS the potential for commerce. That is all you need to say, and you get a trademark.
You WILL have to do some things to protect the trademark, but that should mostly be a straightforward manner of sending a nastygram to anyone else, and just writing an appendix to your open source liscence stating something like "Name X is a trademark of the X Group. Permission is given to use this mark in conjunction with this software, and software which is compatable with the protocols defined by Name X, if this trademark is acknowledegd, etc etc etc".
IANAL, YMMV
Nicholas C Weaver, Winged Rat Consulting
Test your net with Netalyzr
Under Section 45 of the Trademark Act, 15 U.S.C. 1127, defines "commerce" as "all commerce which may lawfully be regulated by Congress." Section 45 defines "use in commerce" as follows:
The term "use in commerce" means the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark. For purposes of this Act, a mark shall be deemed to be in use in commerce--
(1) on goods when--
(a) it is placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed thereto, or if the nature of the goods makes such placement impracticable, then on documents associated with the goods or their sale, and
(b) the goods are sold or transported in commerce, and
(2) on services when it is used or displayed in the sale or advertising of services and the services are rendered in commerce, or the services are rendered in more than one State or in the United States and a foreign country and the person rendering the services is engaged in commerce in connection with the services.
From this it should be clear that engaging in some kind of trivial sale solely for the purpose of registering is inadequate. It should also be seen however, that ongoing sales is not required either.
To "use" the new name "in commerce" sufficient for registration providing a web page with the software for download should be sufficient -- and when I download and install the software it displays (or associates) the mark with the software -- this is sufficient to meet the use requirement--
In addition, the sin qua non of trademark rights is use -- If you have a new mark that you want to make yours, and you've confirmed that it's avalable (don't go offering your kodak brand open source project) USE IT! And mark it as such that you are claiming rights Mark(TM) Open sourcde software -- There is no requriement that you register your trademark but there are clear benefits to doing to.
If you have further questions regarding availability and the registration processlet me know --
Kinj