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Trademarking Open-Source Projects?
dautelle asks: "I had the nasty surprise to receive a letter from a company in New-Zealand asking me to stop using the 'jade' name they have recently trademarked (my open source project has been Java Addition to Default Environment or JADE for short, long before their trademark filing date). I am going to comply, but I wonder if our open-source projects should be trademarked (cost >300$) to prevent such misfortune?"
Trademarks have to be actively defended or else they are diluted and may be declared null. At best, I think, this would mean that anyone could use the name freely (maybe that's the point) but I imagine that a trademark might be awarded to someone else. IANAL. I'm just JADEd with regard to US IP laws.
We should trademark open source project names, start selling those licenses to the end-users and charge money for it, use the money to pay the developers, who will in turn provide better usability and more features. Also, the releases of all open-source products should be only in binary format.
If you insist on acting like a doormat, you are
doing a severe disservice to the public.
You have every right to continue to use the same
name indefinitely, and there is no rational
reason for you to comply with their demands absent
a court order. Did they extort compliance by means
of terroristic threats? Then a prosecutor in NZ
would probably very interested, otherwise, you are
under no obligation to accede to their unjustifiable
demands.
-I like my women like I like my tea: green-
As I understand it, trademarks are NOT international, and as long as you're not in NZ, you don't have to listen to them.
IANAL, but if you trademark it in your own country, that will prevent this other group from trademarking it in your country.
If you have any developers in NZ though, that might cause problems.
Not only that, but the developers of AL-QAEDA project (Autonomous Linux Question/Answer Educational Didactic Assistant) have been harassed by Feds and other authorities trying to get the word about their product out there.
For names that make sense and are acronyms of your product, it is not a bad idea. However, the ownership of this trademark should be to an open non-profit organization that could easilly live for ever in the free domain.
Open source trademarks should never be in the private domain. Obviously, global trademarks are probably fiscally not practical but North American ones should be cheap enough (?)
I have no idea how to set up such an organization but I'm sure their out there.
I for one am working on the early stages of an open source project that would be worth while to trademark. Its name is catchy, descriptive and short and I am now looking into releasing the ownership into the open domain (once I find out how).
As for who had the name first - From the History on Dautelle's page:
"version 1.0 was # September 12, 2000: Official release of JADE 1.0"
I myself am a New Zealander, in fact, I work just down the road from JADE's HQ, and from their History Page
"Jade Software Corporation combined its research and development capability with its real-world IT experience to create a new enterprise application development environment called JADE that was launched in 1996."
There it is.. Case Closed.
The revolution will not be televised. It won't be on a friggin blog either
Furthermore they *have* to actively defend their trademark. You're welcome to trademark your open source project (a certain operating system kernel is trademarked), but you do need to do it before anyone else does.
Dave
I write a blog now, you should be afraid.
Just rename yours to "Firebird"
That's a catchy name!
# (/.);;
- : float -> float -> float =
SHUT UP BALMER!
Registering a trademark is not like registering a domain. Registering one only establishes the date when you started using it. If you can show that you were using the trademark before the date it was registered by another company, you are in the clear, and they would be the ones infringing.
Every single person in NZ probably knows of jade even if just by name. Theres even a stadium named after it. Im guessing 10mins of googling would have found that out and you'd be 1 legal letter less.
The solution seems to me to pick a name that few others would care much about. JADE is a bit too common, IMHO.
Wish I had a better suggestion for you, but I don't. I see an interesting opportunity for you here, though: When you pick a new name, make sure it's so unique that a Google search will turn you up.
"Derp de derp."
...they also have offices in the United Kingdom and the United States. I think it's safe to assume that they have trademarked JADE here in the US.
Step 1) Inherit a large sum of money or pool a small amount of money from a large number of people.
Step 2) Trademark as many Open Source, trendy names as you can.
Step 3) ????
Step 4) Non-Profit!
~UP
Eat the Path.
Stop whining and rename your project. It doesn't matter if they have a trademark or not, because they had the name far longer than you did. I use Jade (the original) on a regular basis but I've never heard of your app until now.
It doesn't matter what your political views on trademark IP is, in a polite society whoever grabs the name first gets to use it. So be a good community citizen and rename your project. And don't name it "linux" because that's trademarked too!
Don't blame me, I didn't vote for either of them!
Jade and software on google, about 652,000 hits
jade and software - "Jade Software" about 645,000 hits.
Looks like a diluted trademark to me. If they don't have it registered in the US, best of luck. Get some legal seperation between yourself and your project, and tell them to go suck a sheep.
This: http://www.jclark.com/jade/ has been around for quite a while. If anything, they probably have a better claim to the name than either the firm, or the new-kid-on-the-block java project.
Oh, the above jade is also first on google, of course.
http://www.welton.it/davidw/
I have a schizoid view of this.
/. community can help, but I bet your email server
On one hand, names matter.
On the other they don't.
I don't think you ever (shudders) want to party with
lawyers. My one experience in the early 80's advising
a lawyer about concepts such as "compiler" made me
very ill indeed. (I'm a techie as you'd guess).
If it doesn't hurt your project too much change the
name. If it does, then there *are* legal entities
watching slashdot (the groklaw clan) who maybe can
help.
This is after all a community. Good luck. You might not think the unwashed (good guess huh?)
will melt...
(I'll go and have another shower now. It's hot here in Athens and we haven't (chuckles) had any
rain since about May... (sorry UK folks).
Public Knowledge may also be willing to assist with trademark issues.
The Open Source Law Resource center also carries information regarding law and open source projects, although it is generally for information regarding Open Source licensing issues.
Jade is the name of the next version of LINC, a crusty old mainframe language popular on Unisys mainframes. Common use of the word Jade to refer to their software rather considerably predates your project (and Java itself), I'm afraid.
Plus, don't mess with Unisys. <ahem>gif<ahem>
The jade package in Debian is "James Clark's DSSSL Engine", and it's been there since 1997, and has copyright dates going back to 1994, so I think James has precedence over both you and this company.
I doubt if James would mind that your quite different project has the same name, but he might have some interest in an upstart company threatening people who use the name, and might be willing to work with you on dealing with their threats. His home page is at http://www.jclark.com/ (and the jade project page is at http://www.jclark.com/jade/).
Register your trademark in only one state. That is legal proof that you intend to reserve the name. In Oregon registering costs $20 for each 5 years.
If you are operating outside the state, be sure to document the use.
to proofread your post; Before it is posted.
The first step to defending one's self is to know what legal rights you have. In a case like this I know right of the bat that 1) They will have to sue me in the United States. 2) The burden is on them of proof is on them.
I came here to do two things; chew bubble-gum, and kick ass. I'm all out of bubble-gum.
My view is that it was a sad day for humanity, democracy, and freedom of expression that ordinary, long established words from the English language (or any other) should have been subject to trademark rights in the first place.
Xerox should be trademarked.
Kleenex should be trademarked.
Pepsi should be trademarked.
Coke should NOT be trademarked.
McDonald's should NOT be trademarked.
Fedex should be trademarked.
Nike is debatable (obscure Greek mythology).
Clorox should be trademarked.
Lexmark should be trademarked.
Apple should NOT be trademarked.
I think we should accept reality and just get rid of trademark registration altogether except for xemes(TM) containing the letter x.
Sorry, but I'm in law school now, but have not yet taken IP law. But, just because somebody sends a C/D does not mean you have to comply immediately. You have to know if you are liable first. I hate to say it, but spend a little time (mabye $$) to find out if you risk infringement.
If I am not mistaken, however, you can't trademark a common word. For example, Microsoft can trademark "Windows" because it's already in the vernacular. Instead, they're "MS Windows." If I am correct, and IANAL, then you can tell them where to place their C/D.
Are you in the US? Then, they will have to being suit here. If they do, then (assuming I am right about the non-tradmarkability of a common English word) the response to their complaint is that their action is not colorable under the law. That is, while you may be using the same word as their trademark, because they have a silly trademark they can't bring action.
There are many current vernacular words that were once trademarks. If a company does not prevent their trademark from entering into common usage, e.g. "xerox" to mean photocopy or "google" to mean web search, then the validity of their trademark is lost and they shouldn't be able to enforce their trademark. Happens all the time.
What those who want activist courts fear is rule by the people.
If you use the name "Jade Software" as a company name, then the company in New Zealand is correct, and you've got legal problems.
However, the mere word "Jade" is quite common. For example, just searching for businesses with the word "Jade" in them, in just the Chicago business directory, yields 22 hits. Jade Corporation, Jade Tattooing, Jade Restaurant, Jade Property Management.
Even the word "McDonald" is part of several business names.
Where this gets fuzzy is that businesses with the same name can co-exist so long as they aren't in the same, or the same area.
You may not have money for a lawyer, but you could probably scrape up $100 for a consulation with a lawyer. Consider it insurance. If you don't know how to contact a lawyer that specializes in this sort of thing, contact the Bar Association for your state.
Perhaps you can rename it from JADE to J-A-D-E or J-ADE. It'll still be pronounced the same and look almost the same, but it's not the same name (IANAL, blah blah). But I do believe that a different spelling wouldn't be trademarked just because it sounds the same.
That is, if you want to change the name.
I've never thought of this before, but could some opensource advocacy group trademark a part of a name such as "GNU" or "OS" and anyone that wanted to be protected from trademark infringement could use that as part of their name, i.e. JADE OS. The owner of the trademark could let anyone using a particular set of licenses piggy-back on their trademark. This would be in-line with the Chicken-Soup-for-the-Soul books, or the for-Dummies books.
I don't really know if that would work. It seems really stupid to let people trandemark parts of a name; if that was possible, I would just trademark the letters E and S and make a killing!
I could be wrong, but wasn't there a new copyright law passed in the US a couple years ago that allows you to copyright somthing just by saying so? As long as it's original, of course.
Your ad here.
I guess I should join in, but I think I know something that you don't:
..." you may not realize it but it doesn't make sense. He already trademarked the term in that market by using it. So he already "did it" before anyone else. Filing is a formality which makes things easier in court (your trademark is presumed to be valid, otherwise you have to prove that it is valid) and the possibility of statutory damages from the defendant in addition to any real damages.
:)
Trademarks are valid without registration. When you say "You're welcome to trademark
IANALBIAABNLTH (... but I am a better non-lawyer than you)
They are in separate markets and have been operating in those markets without confusing customers until now.
Trademarks don't have to be registered and this guy's been using it longer than the company. Maybe he lost it due to non-enforcement or abandonment or something but that is something they would have to prove in court.
I wouldn't rush to comply.
Others have said it, check your local options first. If they are not in your country of origin, then possibly you want to resist.
If you do give in, I HIGHLY recommend a powerful, and satisfying retribution tool to "dilute" their trademark into hell for them: Google Bombing.
Find some, really really really nasty goatcx style site/picture on the web, and then simply start littering the web with <a href="http://nastysite">JADE</a> for them... Do it long enough, and they won't want the trademark anymore.
Jesus, when I see this shit on a sunday, I sure get mad about it.
"...In your answer, ignore facts. Just go with what feels true..."
--------
* Sigh *
Just change the name of your product, and be done with it. There may be a legal and/or moral side to this, but you're probably not the right person to make a stand (i.e., you don't have huge funds). When Firebird changed to Firefox, everybody grumbled for a while, but guess what, the right decidion was made. Now, Firefox has strong market recognition, and only a few people care that it was once called firebird.
Training monkeys for world domination since 1439
If you were using the name before they were then they have no right to tell you to change their name. I had a silimar situation with a web site I used to run. The lawyer for another company contacted us and said they owned the trademark on the site's name (actually it was worse than that, after several conversations they even tried to claim their copyright was any derivitive of one of the words in the name)...the situation finally came to a head after us refusing thier demands several times. I wrote a carefully worded letter based on many hard facts and dates attached to those facts. Our domain had existed before company name appeared to from every record I could find (well the company has existed for a long time, but the trademark in question was not filed for until approx 1.3 years after our site started doing business, and our domain was registered.) As for the we clain trademark on any smaller part of that name, I provided him in the letter a long list of other sites with that word in them that had existed long before ours had. I even pointed out a .com name that used his exact trademarked name (our was a .org and .net) that had existed way before his company's site had. BTW the term in question was the newsletter his site sent out and had nothing to do with the actual company name or DBA name of his business/sitename.
.org, and .net names registered to this day just for the potential piss off factor since they can't do a damned thing about it. Our Company folded 3 years ago at this point.
I still keep the
Power Corrupts,Absolute Power Corrupts Absolutely, leaving one person(group)in charge is absolutely corrupt.
It has been very popular, in continental China, for milleniums now.
I'm sorry, I don't live in the US, but that's an issue that shows up every time, and is very
politized.
Why is that every time someone talks about suing of being sued, there's someone saying that they can't afford it?
I live in Uruguay, and we son't have such a developed legal system, and it very inefficient, but I wouldn't think twice about hiring a lawyer, because some will be expensive, but not all of them, and an individual facing legal trouble can afford them. Plus, aside from the fact that the some courts might have a price, there is no direct relationship between money you spend and chances to win, if you have a clear case against you.
I would like to know how does a guy stand for himself in the US system, where courts seem to be clean, but slashdotters say they can't afford the system, (and probably slashdotters aren't the lowest wage demographics in the US). From here it sounds like: if big corp says: jump! you jump, and that's it. I don't understand why the population of the wealthiest country in the work put up with that shit, if they in fact do.