Exactly, thank you. First he says we gotta have estate taxes, then he says that you can worm out of them. So which is it?
<SARCASM>Oh gosh. I never thought of that! If only there was some way to differentiate between the estate I am likely to leave behind and Larry Elison's likely estate. What can we do? *Sigh* I guess you're right. Every situation is identical and should be treated accordingly.</SARCASM>
Then what use are estate taxes if it is so easy to get out of them?
It is only easy to get out of estate taxes in relatively modest estates. Truly large estates (more than $10 million) are harder to steer around estate taxes. And many of the techniques to avoid estate taxes have other problems and costs.
"but that's an artificial profession (lawyer) that does absolutely no useful work."
As opposed to who? Programmers?
Tax laws should be simple and straightforward; there should be no loopholes, no different ways of "structuring", and any social manipulation being done should be as direct as possible (i.e. with direct subsidies, matching funds to charities rather than charitable deductions, etc).
The problem is that social engineering, which is part of what tax laws do, is complicated. Einstein (I think) said "Everything should be as simple as possible but no simpler." You want "social manipulation to be as direct as possible." What if it already is? What if blunt force incentives don't achieve the desired result? There is definitely room in the tax code for simplification. But how to do that is terribly tricky. It's hard to even tell where the room is.
This is going to be a very long post as I am quoting huge chunks of your post. Be warned!
First off, yes, the government has X expenses, and if we collect X+Y, we should give Y back, short-sighted or not. It is possible to budget for the future, and use conservative estimates. I do it all the time, its not that hard. We have a fairly constant flow of revenue in that it will always be about a certain percent of the GDP. The costs of government should fluctuate with the costs of the GDP. In that way, if the costs of government are 10% of the GDP, then the taxes should amount to 10% of the GDP. That works regardless of the change in the GDP, and it means that the income/expense ratio will be fairly well set.
I truly don't understand this comment. You are saying that the government should give Y back. But then you say it is possible to budget for the future. On the face of it, these appear to be contradictory statements. Do you mean that the expected future costs should be budgeted in? Do you mean that the government should always take 10% of GDP (assuming that's the number) even in years when they only need 8% on the theory that sooner or later they will need 11%? Part of the problem is that although costs do fluctuate with GDP, there is often an inverse relationship and plenty of fixed costs besides. The service on the debt is essentially the same. When times are bad, more people need help. When times are good, more money comes in.
"Wrong even. I'm a big believer in the estate tax, for example." I don't. The government has no right ever to take or force the sale of property/assets. It is immoral of them and us as citizens to allow the government to demand a tithe upon death. I frankly don't care if it applies to 1 person or too 3 people, or 30 million people. Its wrong. It may be practical, but its wrong. That being said, we all know why George Bush wants to cut it - its appealing to some very rich people who are his supporters. That weak minded, and wrong headed, and its a sham. BUT that doesn't change the fact that the estate tax is wrong, morally.
I don't understand this either. However, I think that is because it is so contrary to my world view. I don't see taxes, per se, as morally wrong. I think taxes are simply taxes. Money is simply a clever mental trick that facilitates trade as compared to barter. It has, by itself, no moral condition. In an ideal world, taxes would be used by societies to pay for the things that make society as a whole better. Of course, they can be abused. So what? They still produce, IMO, better outcomes then can be achieved without taxes. And yes, I am outcome oriented. Do the ends then justify the means? Basically, yes. They way I deal with the complaint "that means that torturing babies for pleasure is OK" is to note that I don't consider tortured babies to be a good outcome. But I do take a somewhat Lockeian view of utility and do not view the small pain of taxes as a reason to throw out the enormous benefits. And I can't even deal with the statement "the fact that the estate tax is wrong, morally." Why is that a fact exactly and not simply your opinion?
"Whatever happened to that work hard, self-made man stuff?" I believe in that fully. I am a self-made man. But the question is: should the government force that on everyone? Put it this way: if the estate tax is designed for that purpose, why not take ALL wealth when you die. That way, your children, and their children, etc etc will have to be a self-made person. Does that sound right? How about life-insurance? Shouldn't you just get enough to pay your VISA bill and mortgage? Why should you put your kids through college? Isn't it better to be self-made?
"Do you guys just not do any financial planning?$675,000 is NOT THAT MUCH MONEY when you consider a lifetime of work and investing."
I agree. But part of financial planning is estate planning. Assuming your mom has an estate valued at $1M, it should be fairly trivial to arrange her estate so that the taxes due on the estate are very low or even $0. I don't consider a $1M net estate to put your mom into the "rich" category. Very well off maybe. Estate planning is the key. If you don't plan your estate, then you're stupid.
"And I am not some rich la-dee-dah poofter... I'm a dotcom casualty and I am almost eating dog food right now I'm soo hard up, and there's no end in sight. But I'm not fixated on 'sticking it to the rich.' Sheesh."
Sorry to hear about your hard times. I think laid off dot-commer is probably not going to damage you too badly in the long run (easy for me to say I know). I know the comedown is a pain though. If you're living somewhere expensive, consider moving. Avoid debt like the plague (it isn't worth it for most things). If you're young and healthy enough (by your own definition), seize this opportunity. Go goof off in Mexico. Go teach English in Japan (still potentially lucrative I'm told). Go have some absurd but terribly amusing adventure. Go fall in love. Go to Bob's Donuts in SF and have an apple fritter. If your young enough, not being a wage slave isn't a crime. It's a treat! Revel in it. You can work in a cubical farm or nice office or own your own business later. Have fun!
Finally, I'm not fixated on sticking it to the rich. I do that for fun. I'm fixated on President Tinybrain. He drives me right up a wall.
"When it comes right down to it we as citizens should have and did get a tax refund because it was morally imperative. The government budgets XYZ for a year - lets say $3T. The government collects $4T. It follows that we should refund that extra $1T to the people who paid it. By the way, it also follows that if we only collected $2T that we should all get an additional "gap" tax bill at the end of the year, to cover the deficit."
Well, commies like me will tell you giving huge chunks of change to incredibly wealthy people even while their overall share of the tax burden is decreasing is unfair. Wrong even. I'm a big believer in the estate tax, for example. It typically affects only extremely rich people or moderately rich people that are astonishingly stupid (or unlucky) when it comes to tax planning. There are other mechanisms for dealing with the 9 or so farmers affected. The beautiful thing about the estate tax is that it, like property tax, is a tax on wealth. Being rich is a cool thing and fun and, take alone, morally neutral. But passing that wealth along as a means of entrenching power? The hell with that. President Tinybrain, err, Bush is the son of President George Herbert Walker Bush III. He in turn was freakin' Queen Elizabeth II's 13th cousin twice removed (check it: http://www.genealogyspot.com/know/president.htm). Whatever happened to that work hard, self-made man stuff? (To be nearly fair: Bush the Elder is not a moron. He worked damn hard and definitely bettered the Bush family fortune and prospects by his ventures into the oil business. This was an independent step for him. At worst he may be an evil CIA spook who should have been fitted with a radio collar for surveillance purposes. But at least he actually went out and did stuff unlike his useless kid.) Maybe Tinybrain would be a better prez if he'd had to work for a living?
Cynical and bitter lovers of freedom and democracy like me will tell you that offering a tiny bribe to people who are more likely to have not voted for you than not is a cheap way to distract them from the coup you accomplished last fall. We will also point out that had you given the money "back" in the form of credits on payroll taxes (the largest category of taxes for most people and tremendously regressive [not that that is always a bad thing; c.f. my estate tax rant above]) you would have helped far more people than this did. It apparently wasn't a question of "your" money as it was "some of your money." Of course then you wouldn't be able to reward the people that helped overthrow our government.
But most of all, pragmatic people like me will tell you that flushing the surplus we have now so we can borrow it back later (plus more to pay the debt service!) is astonishingly short sighted. The heart of my beef with your post is your take on the budgetary process.
I thought that was what you meant but it is critically important so I jumped on it. Just to amplify, even when some entitiy has an earlier registration, another entity could have an earlier use. The other entity may well retain whatever rights it already has. The cases that give us this rule all predate the Internet. It will be interesting to see if this rule, which relied in part on the relative isolation and distinctiveness of geographic areas, survives the transition to the globa village.
"I'm sorry, but I think that you're argument is incorrect. You're first assumption is bad, IMHO: you are not, in fact, defending your trademark by registering only the *.mysql.com domain name. Let's look at examples from another namespace, corporation names."
I'm sorry, but your strawman examples don't reflect the truth about trademarks.
Example 1: Foogiston, Inc. v. Foogiston Systems, Ltd. and identical products.
You say that Foogiston, Inc. wins because they were incorporated first. The incorporation date is irrelevant. What matters is whose trademark has priority. If you are saying that Inc. registered the mark before Ltd. ever even used the term Foogiston, then Inc. wins but because they registered first, not because they incorporated first. Under trademark jurisprudence, it is quite possible that the Ltd. was using the term Foogiston first even though they incorporated second. It is possible that Ltd. never registered the term at all but will retain the use of the term in certain geographic areas. You don't present enough facts to know for sure. But in short, whoever used the name first in conjunction with commerce will likely have the stronger case.
Example 2: Foogiston, Inc. v. Foogiston Systems, Ltd. and unrelated products.
You say that Ltd. wins because the product is unrelated and they cannot show damage. The problem with this example is the name "Foogiston." "Foogiston" is (apparently) an arbitrary arrangement of letters that is supposed to be utterly unconnected to a real word. That would make it a potentially extremely strong trademark. The example here is Kodak. Do you think you have the right to sell Kodak brand dishwashing soap? Even though there is no possible confusion with Eastman Kodak stuff and you studiously avoid red and orange color schemes? I doubt you do but if so, please never try it. You will get hammered into a thin paste if you do. "Kodak" is an arbitrary name (allegedly picked because Eastman liked the letter "k") that the Eastman Kodak company has spent an enormous amount of resources in promoting. Why should you ride their coattails? Ltd.'s use of "Foog!" in your example may or may not be found to infringe. It depends on just how strong a mark "Foogiston" is. But the lack of a common product is in no way determinative in deciding if there is an infringement. At best it is one factor (of seven I think but I don't remember; sorry) the court will consider.
Example 3: Foogiston, Inc, publisher of Foog Magazine and B. Whiteguy, publisher of 'zine foog-zine.net.
This may be a case of infringement. Probably even. But maybe not. Again, the date of incorporation is irrelevant. If Inc. registered "Foog" as a trademark prior to Mr. Whiteguy's use of "foog" as the name for his 'zine, then Inc. has a slam-dunk. However, if Mr. Whiteguy used the name innocent of Inc.'s mark, he may be allowed to retain some rights. These rights could include the "natural progression" of the use and this could include the foog-zine.net domain. And if Mr. Whiteguy used the name in commerce (and yes, giving away a 'zine is commerce) first, he would likely have superior rights.
When you are looking solely at similarity of name and product, you see much of the trademark territory but not all of it. You must examine the totality of the situation. This is why theoretical discussions can take you only so far. The actual facts in a particular case are what matters. The devil is in the details and all that.
"Adobe Illustrator" pens might be OK if there was no liklihood of confusion between that and "Illustrator" pens. It would be a close case. And actually, thinking about it in the light of morning, I don't think it would pass. Adobe's "Illustrator" trademark is fairly weak because it is a real word that is widely used. (Not weak enough not to be trademarkable, i.e. generic, but weak none the less.) If they were to launch a line of pens calle "Adobe Illustrator," they might be able to do so but that might weaken the mark in the software even more, perhaps fatally. If people stop thinking drawing program when they think "Adobe Illustrator," Adobe is in trouble. So all this rambling I've done is only to suggest that it *may* be possible but probably not and in any case it wouldn't be smart. Look up "illustrator" in the PTO's trademark database (http://tess.uspto.gov/bin/gate.exe?f=tess&state=n uacvl.1.1) and you will see 16 live trademarks (13 of which are registered). That's a lot for a word that isn't an adjective. ("Blue," for example, appears in 4228 marks. Yikes.)
"Sounds like Adobe's PR people pulled the plug on Adobe's legal team."
My reading of the opriginal article and discussion leads me to conclude that the threats against Killustrator were *never* instigated by Adobe's attorneys. Rather, it was a third party operation by German lawyers taking advantage of a bizarre German law that essentially creates IP bounty hunters. Anyone have actual evidence to the contrary?
"The distrubing part is that 'illustrator' is a somewhat generic name, which does not specificlly indicate a piece of IP owned by Adobe Systems, Inc."
As was pointed out last time and doubtless pointed out this time, "Illustrator" is a trademark of Adobe (as is "Adobe Illustrator").
From the PTO site (Note that first use in commerce, 12/15/86):
Typed Drawing
Word Mark ILLUSTRATOR
Goods and Services IC 009. US 021 023 026 036 038. G & S: computer software for use in graphic design, desktop publishing, electronic publishing, printing, artistic and technical drawing, creating fonts and typefaces, and special graphical and textual effects; computer software containing clip art, and typefaces; and users' manuals and instructional books sold as a unit therewith. FIRST USE: 19861215. FIRST USE IN COMMERCE: 19861215
Mark Drawing Code (1) TYPED DRAWING
Serial Number 74731075
Filing Date September 19, 1995
Published for Opposition February 18, 1997
Registration Number 2060488
Registration Date May 13, 1997
Owner (REGISTRANT) Adobe Systems Incorporated CORPORATION CALIFORNIA 1585 Charleston Road P.O. Box 7900 Mountain View CALIFORNIA 94039
"But "illustrator" is just too generic."
"Generic" in the trademark sense requires an examination of the context of the mark. In short, completely made-up words (e.g. Kodak) are very strong marks and actual words are somewhat weaker. Only when the word is the essential name of the thing do you have a genericity problem. So you can't have Apple brand apples but you can have Apple computer. Moreover, there is no such thing in the trademark world as "too generic." Much like being pregnant, a term in context is either generic or not.
NB: This doesn't mean that other folks can't use the word "illustrator" in conjunction with their products. My favorite example here is "Illustrator" all by itself as a trademark for a manufacturer of pen products. On the PTO:
Typed Drawing
Word Mark ILLUSTRATOR
Goods and Services IC 016. US 038. G & S: Pens. FIRST USE: 19590000. FIRST USE IN COMMERCE: 19590000
Why is this possible? Why did Adobe get to trademark "Illustrator" for their software when someone else already trademarked it for their pens? Because their is no likelihood of confusion. Pens are pens and software is software (Please don't bring up Graffiti.;-) and even though the same people might use both products for similar purposes, they understand the difference. However, Adobe could definitely not make a line of pens called "Illustrator." (Although "Adobe Illustrator" pens would probably be OK.)
Not a worse thing, anyway, and maybe a good thing.
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I think the affect will be the opposite of what you propose. You point out, correctly I think, that "A book's ability to be sold often depends on it being on a shelf." A b&m bookstore has limited amounts of shelving space. The big publishers and book distributors exercise enormous control over what books are available on the shelves, their positions, how much space they get, etc. If you want an obscure book or even a not so obscure book, you may not find it because it has been squeezed out for one more copy of a King novel. And if you can't get it now, you may not bother to order it. With the machine, you could print any book it had in its inventory. Theoretically, an infinitely long bookshelf. An ideal solution might be a super store with one copy of tens of thousands of titles for browsing and then (more advanced) printing engines that produce the books. It could still print titles not on display but the display space wouldn't have to double as warehouse space. Therefore more display space would be available for other titles. Of course, it could also be monopolized in the same way it is now. But at least you wouldn't be worse off as far as browsing is concerned and you would be better off with respect to instant gratification.
I don't pay for content because so much of it is already free. Granted, at the current rate of dot-bombing, there will soon be nothing but X-10 ads and pr0n. But even if I wanted to pay (and I don't; not really), there is no simple way to do it. But that could presumably be fixed. I don't think it will work because "content" on the net is, like TV, radio, and newspapers, a one-to-many situation where reaching an agreement on price between the content provider and all the consumers is terribly difficult. Which should make it an ideal environment for the ad-supported business models the other media all use. But that didn't work (yet). Why not?
I think it is because the metrics are too good. There is a body of work that suggests that *all* advertising doesn't work very well. Nobody talks about it because the media need the content providers meed the money and the advertisers feel like they have to do something. But on the net, you can get all kinds of metrics about how your ads are being used, viewed, clicked on, and what affect they have on revenue (probable answer: not much). The advertiser's nose gets rubbed in the fact that the ads don't work. So they pull the ads and Suck dies.
Maybe the answer lies in some kind of "forced" advertising like the commercial break where the content is unavailable and the ad is there. Or qualified subscribers. Or something else. Beats me. But "relying on the kindness of strangers" isn't going to work.
"Regardless of the bandwidth costs - say it only cost 59 a day - it's still money that the school/state wouldn't have had to pay if he'd done his job (and only his job)."
Actually, the cost matters a great deal. The difference between 59 cents a day and 59 cents a second is over $50,000 a day. The statute under which he is charged probably (haven't looked it up) specifies a minimum dollar amount to make it a felony. Almost certainly over $1000. At 59 cents a day he would hav more than 4.6 bandwidth-years before he got to $1000.
I suspect that his best bet is to argue the facts: Not that he didn't do it but the dollar amount "taken" doesn't amount to a felony. Good luck.
Another good source for racks is ham fests. Lots of telcos swap the things out when they get mungy. I got a nice 6 footer with wheels and fans for $100. It was gross looking but it cleaned up nice. And you know you're just going to slap stickers all over it.
"Now, French on the other hand, is a different story. People in the US use French all the time when there are perfectly acceptable English subtitutes: lèse-majesté (detraction from dignity), par excellence (being the best kind), nouveau riche (new rich), etc. So in that case, we have no excuse. And of course, when people in the US say these French words, they pronounce them perfectly, much to the glee of French people everywhere."
French has a certain, oh, I don't know what, je ne sais quoi?
(Thanks Mr. Martin! I still remember when you were funny!)
"Why should the reverse (a common English word becoming a trademark for the very thing it means) be permitted?"
I think this is where we are fundamentally at odds. I agree that we (i.e. the US) should not permit common English words to become trademarks for the very things the word means. But I disagree that "Illustrator" does this. I think it is different enough, and that there are suitable, more generic alternatives to the word, from the underlying class of software programs that it can be a trademark. One of the main tests for a trademark is whether or not it has acquired distinctiveness by which they mean you think of the product when you hear the trademark. I think that when talking about graphics software, the word "illustrator" is likely to makepeople think of the Adobe product. Of course, you could have someone say "As a professional illustrator, I like program X." But distinctiveness needn't be universal.
I think "Illustrator" is a weak trademark and that a case against a piece of software that wasn't a vector graphics program but still called "killustrator" (an FPS for instance which would focus on the "kill" part), would be much harder. It is the particular facts of this situation that lead me to conclude that Killustrator is infringing an Adobe trademark.
I don't think that you think it is clear cut either. Your use of "arguably" when discussing the definition of "illustrator" indicates to me that you may think you are having to stretch your argument to make your case. Do you think that whatever level of genericness that you think "illustrator" has in this context is due to Adobe's marketing of their software? The common use of "Adobe Illustrator" as a two word name? Your points at the end about Xerox are correct. Is this what you think has happened? (I don't. Not yet anyway. But it is interesting.)
"I'm sorry, illustrator is in the dictionary but painterbrush is not. What is your point.
What is a stroller? Something to stroll with."
Last things first: "Stroller" is both a thing for transporting very small children and a person that strolls. "Illustrator" is defined by my OED 2nd Edition as "one who or that which illustrates, in the various senses of the verb." It is not a thing. It is a thing (including a person) that performs an action. In short, "stroller" is not analogous to "illustrator." Your criticism of Adobe's trademark (BTW, "adobe" means an unburnt brick baked in the sun. Where do you sit on that trademark?) would be better received if the name of the prodcut were "Adobe Illustrating." But it isn't.
My point is that just because a word is in the dictionary, it doesn't mean that it cannot be a trademark. And just because a word is a trademark, it doesn't mean that it cannot be used by other persons. You have to look at the context. "Generic," when discussing trademarks, means that there is no other reasonable way to refer to the thing than by that name.
Take "beer" (please!) for example. That tasty beverage made from water, malt, yeast and hops. Is there a "reasonable" way to refer to beer other than as "beer"? I wrote "That tasty beverage made from water, malt, yeast and hops," above. But I cannot imagine having to say "I'd like a bock tasty beverage made from water, malt, yeast and hops," everytime I wanted bock beer. So it would be improper for someone to trademark "Beer" as a name for "beer" and then prevent other epople from using it.
But "illustrator" in the context of software is not a generic term. Is there another reasonable name for what kind of software "Adobe Illustrator" is? What about "draw" or "drawing" software? Fewer sylables (always a good thing for me), no confusion between the person performing the act and the act itself. Seems pretty good to me.
Shakespeare wrote "a rose by any other name would smell as sweet" meaning that the name of the thing is not the essence of it. But when I call my new line of phased plasma rifles "Rose," I am not turning them into something that smells sweet. There is no relationship between the word rose and a phased plasma rifle in the 20 watt range. So I can get a trademark in the name Rose as applied to my rifles. And I can make somebody in Germany selling the "Krose" brand phased plasma rifle (or possibly even "Crows" due to the phonetic simularity. Tougher case.) stop selling it. "Rose" is a generic term for members of the Rosa genus. In other contexts, it is NOT generic.
As the other respondent pointed out, Adobe has trademarks in both names. I looked it up instead of spouting off. See the difference?
I assume that since you seem to think that appending a "k" to the front of a trademarked name when used in the trademark context is "really bad," you now, having been clued up on the various trademarks, think "killustrator" is "really bad."
And as long as we're cluing you in, you might want to reread the article and the/. responses. You'd learn that there is nothing linking Adobe itself to these actions. Rather, it looks like some odd form of IP extortion allowed for under German law.
As the final stop on the clue train, if you think protecting your trademark is "fascism" and "evil," even when being overzealous, you need to correct that rectal / cranial inversion and study the 20th century's history.
Because "Illustrator" is a real word, and somewhat suggestive of what the software does, it is a relatively weak mark. Essentially, Adobe only has rights in the word when used with graphics software. And even a raster/paint program might fall outside of the protected space.
"Windex" and "Kleenex" are much stronger marks. They are made up words, but the "win" suggests some sort of glass application and "kleen" suggests a sanitary function. (That is, they are not as strong as completely arbitrary marks like "Kodak." Allegedly picked because Eastman liked the letter "k".) Still, you would be hard pressed to use either the word "Windex" or the word "Kleenex" in conjunction with anything and not have their lawyers bearing down on you.
But you might well be able to use "kleen" or or "nex" or "dex" and certainly "win". My point is that context is everything. You cannot stop the analysis at the point you find the word in the dictionary. You have to see if it is generic or overly descriptive in the context used.
I think that "software for illustrations" shows (I originally type "illustrates";-) both our positions. The person you mentioned asked for "software for illustrations." I would emphasize that they were asking for *software* not for *illustrators*. You might say that this example shows that Adobe has an improper trademark. I would say that they have a weak mark, know it, and consequently are very active in policing it.
And you are definitely right about how people use kleenex and windex. Especially kleenex. One of the real dangers for a trademark holder is that their mark becomes so associated with the underlying product that it comes to *mean* the product. That is, it becomes generic. Kimberly-Clark has savage attack lawyers that look out for using the word "kleenex" with a lower case "k". The Coca-Cola Company actually hires people to go into restaurants they know sell Pepsi and order "a Coke." If the waitron brings them a beverage without first saying, "I'm sorry, we serve Pepsi. Is that OK?", they will take the beverage out for analysis and upon determining that it is indeed Pepsi, rain down like hellfire upon the restaurant. (Though they usually let them off with an extremely long-term contract for Coke.) They do this not just because it is fun if you are an attack lawyer, they do it because "coke" (with a lower-case "c") might become a generic term. And that would cost them billions.
"How in the world are we expected to check every possible name, or combination of a name that may be registered?"
Oh please. They called a drawing program "Killustrator" fercryinoutloud. How long did I have to search for that? ANd how could Adobe take it as anything but a taunt? But in any event, the PTO site is pretty good as are the search engines in simply finding occurances of a word. And when you hit the bigs, you can pay some specialized firm to name check for your spankin' new project. I suggest "no va".
A couple of quick points about trademarks. You cannot trademark the generic term for the product you want to name. That is, you couldn't get a trademark for the term "pencil" as applied to pencils. You cannot have "Pencil Brand Pencils." Duh. Notice, however, that I did not say you couldn't get a mark in a generic term. "Apple" is a gerneric term for the fruit of the apple tree. So no "Apple Brand Apples." But you may have heard of "Apple Computer." "Apple" is not the generic term for a computer so this is OK! You (or rather, Apple) can have the trademark. But you can't stop me from calling the fruit I harvest from apple trees "apples." And I can take "Apple Cars" in NYC which I can call the "Big Apple" as much as I want. Huzzah!
The word "apple" is a weak mark because it is so commonly used. But as applied to computers it is very strong. Trademarks run the gamut from those that are so weak they suggest what the underlying product is to those that are completely made up and thus very strong. A classic example of the latter is "Kodak," a completely made up word. I cannot sell "Kodak Brand Silverware" even though nobody would thnk it was made by the camera people. Why? Becasue George Eastman made up Kodak and they have a very strong mark.
While you are getting "clued up," remember that context is essential in examining genericness. I doubt you have ever referred to a piece of non-adobe software as "the illustrator software." It's not grammatically correct and worse, it would make a person sound like a doofus.
So, no, the situation you describe where layout people for the New Yorker live in fear of accidently referring to a cartoonist as, *choke*, an ILLUSTRATOR and being sued into oblivion cannot happen. OTOH, I'd like to see a fish animation program called "Gillistrator." That would be cool.
Slashdot Mirror
Exactly, thank you. First he says we gotta have estate taxes, then he says that you can worm out of them. So which is it?
<SARCASM>Oh gosh. I never thought of that! If only there was some way to differentiate between the estate I am likely to leave behind and Larry Elison's likely estate. What can we do? *Sigh* I guess you're right. Every situation is identical and should be treated accordingly.</SARCASM>
Then what use are estate taxes if it is so easy to get out of them?
It is only easy to get out of estate taxes in relatively modest estates. Truly large estates (more than $10 million) are harder to steer around estate taxes. And many of the techniques to avoid estate taxes have other problems and costs.
"but that's an artificial profession (lawyer) that does absolutely no useful work."
As opposed to who? Programmers?
Tax laws should be simple and straightforward; there should be no loopholes, no different ways of "structuring", and any social manipulation being done should be as direct as possible (i.e. with direct subsidies, matching funds to charities rather than charitable deductions, etc).
The problem is that social engineering, which is part of what tax laws do, is complicated. Einstein (I think) said "Everything should be as simple as possible but no simpler." You want "social manipulation to be as direct as possible." What if it already is? What if blunt force incentives don't achieve the desired result? There is definitely room in the tax code for simplification. But how to do that is terribly tricky. It's hard to even tell where the room is.
This is going to be a very long post as I am quoting huge chunks of your post. Be warned!
First off, yes, the government has X expenses, and if we collect X+Y, we should give Y back, short-sighted or not. It is possible to budget for the future, and use conservative estimates. I do it all the time, its not that hard. We have a fairly constant flow of revenue in that it will always be about a certain percent of the GDP. The costs of government should fluctuate with the costs of the GDP. In that way, if the costs of government are 10% of the GDP, then the taxes should amount to 10% of the GDP. That works regardless of the change in the GDP, and it means that the income/expense ratio will be fairly well set.
I truly don't understand this comment. You are saying that the government should give Y back. But then you say it is possible to budget for the future. On the face of it, these appear to be contradictory statements. Do you mean that the expected future costs should be budgeted in? Do you mean that the government should always take 10% of GDP (assuming that's the number) even in years when they only need 8% on the theory that sooner or later they will need 11%? Part of the problem is that although costs do fluctuate with GDP, there is often an inverse relationship and plenty of fixed costs besides. The service on the debt is essentially the same. When times are bad, more people need help. When times are good, more money comes in.
"Wrong even. I'm a big believer in the estate tax, for example."
I don't. The government has no right ever to take or force the sale of property/assets. It is immoral of them and us as citizens to allow the government to demand a tithe upon death. I frankly don't care if it applies to 1 person or too 3 people, or 30 million people. Its wrong. It may be practical, but its wrong. That being said, we all know why George Bush wants to cut it - its appealing to some very rich people who are his supporters. That weak minded, and wrong headed, and its a sham. BUT that doesn't change the fact that the estate tax is wrong, morally.
I don't understand this either. However, I think that is because it is so contrary to my world view. I don't see taxes, per se, as morally wrong. I think taxes are simply taxes. Money is simply a clever mental trick that facilitates trade as compared to barter. It has, by itself, no moral condition. In an ideal world, taxes would be used by societies to pay for the things that make society as a whole better. Of course, they can be abused. So what? They still produce, IMO, better outcomes then can be achieved without taxes. And yes, I am outcome oriented. Do the ends then justify the means? Basically, yes. They way I deal with the complaint "that means that torturing babies for pleasure is OK" is to note that I don't consider tortured babies to be a good outcome. But I do take a somewhat Lockeian view of utility and do not view the small pain of taxes as a reason to throw out the enormous benefits. And I can't even deal with the statement "the fact that the estate tax is wrong, morally." Why is that a fact exactly and not simply your opinion?
"Whatever happened to that work hard, self-made man stuff?"
I believe in that fully. I am a self-made man. But the question is: should the government force that on everyone? Put it this way: if the estate tax is designed for that purpose, why not take ALL wealth when you die. That way, your children, and their children, etc etc will have to be a self-made person. Does that sound right? How about life-insurance? Shouldn't you just get enough to pay your VISA bill and mortgage? Why should you put your kids through college? Isn't it better to be self-made?
"Do you guys just not do any financial planning?$675,000 is NOT THAT MUCH MONEY when you consider a lifetime of work and investing."
I agree. But part of financial planning is estate planning. Assuming your mom has an estate valued at $1M, it should be fairly trivial to arrange her estate so that the taxes due on the estate are very low or even $0. I don't consider a $1M net estate to put your mom into the "rich" category. Very well off maybe. Estate planning is the key. If you don't plan your estate, then you're stupid.
"And I am not some rich la-dee-dah poofter... I'm a dotcom casualty and I am almost eating dog food right now I'm soo hard up, and there's no end in sight. But I'm not fixated on 'sticking it to the rich.' Sheesh."
Sorry to hear about your hard times. I think laid off dot-commer is probably not going to damage you too badly in the long run (easy for me to say I know). I know the comedown is a pain though. If you're living somewhere expensive, consider moving. Avoid debt like the plague (it isn't worth it for most things). If you're young and healthy enough (by your own definition), seize this opportunity. Go goof off in Mexico. Go teach English in Japan (still potentially lucrative I'm told). Go have some absurd but terribly amusing adventure. Go fall in love. Go to Bob's Donuts in SF and have an apple fritter. If your young enough, not being a wage slave isn't a crime. It's a treat! Revel in it. You can work in a cubical farm or nice office or own your own business later. Have fun!
Finally, I'm not fixated on sticking it to the rich. I do that for fun. I'm fixated on President Tinybrain. He drives me right up a wall.
"Hey, if you can still get more than 1 day out of $300 you're better off than me."
Your expenses total more than $100K a year? Ouch. Do you have 50 kids or what?
I may be an off topic troll but what the hell:
"When it comes right down to it we as citizens should have and did get a tax refund because it was morally imperative. The government budgets XYZ for a year - lets say $3T. The government collects $4T. It follows that we should refund that extra $1T to the people who paid it. By the way, it also follows that if we only collected $2T that we should all get an additional "gap" tax bill at the end of the year, to cover the deficit."
Well, commies like me will tell you giving huge chunks of change to incredibly wealthy people even while their overall share of the tax burden is decreasing is unfair. Wrong even. I'm a big believer in the estate tax, for example. It typically affects only extremely rich people or moderately rich people that are astonishingly stupid (or unlucky) when it comes to tax planning. There are other mechanisms for dealing with the 9 or so farmers affected. The beautiful thing about the estate tax is that it, like property tax, is a tax on wealth. Being rich is a cool thing and fun and, take alone, morally neutral. But passing that wealth along as a means of entrenching power? The hell with that. President Tinybrain, err, Bush is the son of President George Herbert Walker Bush III. He in turn was freakin' Queen Elizabeth II's 13th cousin twice removed (check it: http://www.genealogyspot.com/know/president.htm). Whatever happened to that work hard, self-made man stuff? (To be nearly fair: Bush the Elder is not a moron. He worked damn hard and definitely bettered the Bush family fortune and prospects by his ventures into the oil business. This was an independent step for him. At worst he may be an evil CIA spook who should have been fitted with a radio collar for surveillance purposes. But at least he actually went out and did stuff unlike his useless kid.) Maybe Tinybrain would be a better prez if he'd had to work for a living?
Cynical and bitter lovers of freedom and democracy like me will tell you that offering a tiny bribe to people who are more likely to have not voted for you than not is a cheap way to distract them from the coup you accomplished last fall. We will also point out that had you given the money "back" in the form of credits on payroll taxes (the largest category of taxes for most people and tremendously regressive [not that that is always a bad thing; c.f. my estate tax rant above]) you would have helped far more people than this did. It apparently wasn't a question of "your" money as it was "some of your money." Of course then you wouldn't be able to reward the people that helped overthrow our government.
But most of all, pragmatic people like me will tell you that flushing the surplus we have now so we can borrow it back later (plus more to pay the debt service!) is astonishingly short sighted. The heart of my beef with your post is your take on the budgetary process.
I thought that was what you meant but it is critically important so I jumped on it. Just to amplify, even when some entitiy has an earlier registration, another entity could have an earlier use. The other entity may well retain whatever rights it already has. The cases that give us this rule all predate the Internet. It will be interesting to see if this rule, which relied in part on the relative isolation and distinctiveness of geographic areas, survives the transition to the globa village.
"I'm sorry, but I think that you're argument is incorrect. You're first assumption is bad, IMHO: you are not, in fact, defending your trademark by registering only the *.mysql.com domain name. Let's look at examples from another namespace, corporation names."
I'm sorry, but your strawman examples don't reflect the truth about trademarks.
Example 1: Foogiston, Inc. v. Foogiston Systems, Ltd. and identical products.
You say that Foogiston, Inc. wins because they were incorporated first. The incorporation date is irrelevant. What matters is whose trademark has priority. If you are saying that Inc. registered the mark before Ltd. ever even used the term Foogiston, then Inc. wins but because they registered first, not because they incorporated first. Under trademark jurisprudence, it is quite possible that the Ltd. was using the term Foogiston first even though they incorporated second. It is possible that Ltd. never registered the term at all but will retain the use of the term in certain geographic areas. You don't present enough facts to know for sure. But in short, whoever used the name first in conjunction with commerce will likely have the stronger case.
Example 2: Foogiston, Inc. v. Foogiston Systems, Ltd. and unrelated products.
You say that Ltd. wins because the product is unrelated and they cannot show damage. The problem with this example is the name "Foogiston." "Foogiston" is (apparently) an arbitrary arrangement of letters that is supposed to be utterly unconnected to a real word. That would make it a potentially extremely strong trademark. The example here is Kodak. Do you think you have the right to sell Kodak brand dishwashing soap? Even though there is no possible confusion with Eastman Kodak stuff and you studiously avoid red and orange color schemes? I doubt you do but if so, please never try it. You will get hammered into a thin paste if you do. "Kodak" is an arbitrary name (allegedly picked because Eastman liked the letter "k") that the Eastman Kodak company has spent an enormous amount of resources in promoting. Why should you ride their coattails? Ltd.'s use of "Foog!" in your example may or may not be found to infringe. It depends on just how strong a mark "Foogiston" is. But the lack of a common product is in no way determinative in deciding if there is an infringement. At best it is one factor (of seven I think but I don't remember; sorry) the court will consider.
Example 3: Foogiston, Inc, publisher of Foog Magazine and B. Whiteguy, publisher of 'zine foog-zine.net.
This may be a case of infringement. Probably even. But maybe not. Again, the date of incorporation is irrelevant. If Inc. registered "Foog" as a trademark prior to Mr. Whiteguy's use of "foog" as the name for his 'zine, then Inc. has a slam-dunk. However, if Mr. Whiteguy used the name innocent of Inc.'s mark, he may be allowed to retain some rights. These rights could include the "natural progression" of the use and this could include the foog-zine.net domain. And if Mr. Whiteguy used the name in commerce (and yes, giving away a 'zine is commerce) first, he would likely have superior rights.
When you are looking solely at similarity of name and product, you see much of the trademark territory but not all of it. You must examine the totality of the situation. This is why theoretical discussions can take you only so far. The actual facts in a particular case are what matters. The devil is in the details and all that.
"Adobe Illustrator" pens might be OK if there was no liklihood of confusion between that and "Illustrator" pens. It would be a close case. And actually, thinking about it in the light of morning, I don't think it would pass. Adobe's "Illustrator" trademark is fairly weak because it is a real word that is widely used. (Not weak enough not to be trademarkable, i.e. generic, but weak none the less.) If they were to launch a line of pens calle "Adobe Illustrator," they might be able to do so but that might weaken the mark in the software even more, perhaps fatally. If people stop thinking drawing program when they think "Adobe Illustrator," Adobe is in trouble. So all this rambling I've done is only to suggest that it *may* be possible but probably not and in any case it wouldn't be smart. Look up "illustrator" in the PTO's trademark database (http://tess.uspto.gov/bin/gate.exe?f=tess&state=n uacvl.1.1) and you will see 16 live trademarks (13 of which are registered). That's a lot for a word that isn't an adjective. ("Blue," for example, appears in 4228 marks. Yikes.)
"K Illustrator?" Hmmmmm. Probably not. "Kastrator?" Sure!
"Sounds like Adobe's PR people pulled the plug on Adobe's legal team."
My reading of the opriginal article and discussion leads me to conclude that the threats against Killustrator were *never* instigated by Adobe's attorneys. Rather, it was a third party operation by German lawyers taking advantage of a bizarre German law that essentially creates IP bounty hunters. Anyone have actual evidence to the contrary?
"The distrubing part is that 'illustrator' is a somewhat generic name, which does not specificlly indicate a piece of IP owned by Adobe Systems, Inc."
;-) and even though the same people might use both products for similar purposes, they understand the difference. However, Adobe could definitely not make a line of pens called "Illustrator." (Although "Adobe Illustrator" pens would probably be OK.)
As was pointed out last time and doubtless pointed out this time, "Illustrator" is a trademark of Adobe (as is "Adobe Illustrator").
From the PTO site (Note that first use in commerce, 12/15/86):
Typed Drawing
Word Mark ILLUSTRATOR
Goods and Services IC 009. US 021 023 026 036 038. G & S: computer software for use in graphic design, desktop publishing, electronic publishing, printing, artistic and technical drawing, creating fonts and typefaces, and special graphical and textual effects; computer software containing clip art, and typefaces; and users' manuals and instructional books sold as a unit therewith. FIRST USE: 19861215. FIRST USE IN COMMERCE: 19861215
Mark Drawing Code (1) TYPED DRAWING
Serial Number 74731075
Filing Date September 19, 1995
Published for Opposition February 18, 1997
Registration Number 2060488
Registration Date May 13, 1997
Owner (REGISTRANT) Adobe Systems Incorporated CORPORATION CALIFORNIA 1585 Charleston Road P.O. Box 7900 Mountain View CALIFORNIA 94039
"But "illustrator" is just too generic."
"Generic" in the trademark sense requires an examination of the context of the mark. In short, completely made-up words (e.g. Kodak) are very strong marks and actual words are somewhat weaker. Only when the word is the essential name of the thing do you have a genericity problem. So you can't have Apple brand apples but you can have Apple computer. Moreover, there is no such thing in the trademark world as "too generic." Much like being pregnant, a term in context is either generic or not.
NB: This doesn't mean that other folks can't use the word "illustrator" in conjunction with their products. My favorite example here is "Illustrator" all by itself as a trademark for a manufacturer of pen products. On the PTO:
Typed Drawing
Word Mark ILLUSTRATOR
Goods and Services IC 016. US 038. G & S: Pens. FIRST USE: 19590000. FIRST USE IN COMMERCE: 19590000
Mark Drawing Code (1) TYPED DRAWING
Serial Number 73210166
Filing Date April 4, 1979
Published for Opposition April 29, 1980
Registration Number 1140752
Registration Date October 21, 1980
Owner (REGISTRANT) Illustrator Pen Products, Inc. CORPORATION CONNECTICUT 328 Poquonock Ave. Windsor CONNECTICUT 06095
Why is this possible? Why did Adobe get to trademark "Illustrator" for their software when someone else already trademarked it for their pens? Because their is no likelihood of confusion. Pens are pens and software is software (Please don't bring up Graffiti.
I think the affect will be the opposite of what you propose. You point out, correctly I think, that "A book's ability to be sold often depends on it being on a shelf." A b&m bookstore has limited amounts of shelving space. The big publishers and book distributors exercise enormous control over what books are available on the shelves, their positions, how much space they get, etc. If you want an obscure book or even a not so obscure book, you may not find it because it has been squeezed out for one more copy of a King novel. And if you can't get it now, you may not bother to order it. With the machine, you could print any book it had in its inventory. Theoretically, an infinitely long bookshelf. An ideal solution might be a super store with one copy of tens of thousands of titles for browsing and then (more advanced) printing engines that produce the books. It could still print titles not on display but the display space wouldn't have to double as warehouse space. Therefore more display space would be available for other titles. Of course, it could also be monopolized in the same way it is now. But at least you wouldn't be worse off as far as browsing is concerned and you would be better off with respect to instant gratification.
I don't pay for content because so much of it is already free. Granted, at the current rate of dot-bombing, there will soon be nothing but X-10 ads and pr0n. But even if I wanted to pay (and I don't; not really), there is no simple way to do it. But that could presumably be fixed. I don't think it will work because "content" on the net is, like TV, radio, and newspapers, a one-to-many situation where reaching an agreement on price between the content provider and all the consumers is terribly difficult. Which should make it an ideal environment for the ad-supported business models the other media all use. But that didn't work (yet). Why not?
I think it is because the metrics are too good. There is a body of work that suggests that *all* advertising doesn't work very well. Nobody talks about it because the media need the content providers meed the money and the advertisers feel like they have to do something. But on the net, you can get all kinds of metrics about how your ads are being used, viewed, clicked on, and what affect they have on revenue (probable answer: not much). The advertiser's nose gets rubbed in the fact that the ads don't work. So they pull the ads and Suck dies.
Maybe the answer lies in some kind of "forced" advertising like the commercial break where the content is unavailable and the ad is there. Or qualified subscribers. Or something else. Beats me. But "relying on the kindness of strangers" isn't going to work.
"Regardless of the bandwidth costs - say it only cost 59 a day - it's still money that the school/state wouldn't have had to pay if he'd done his job (and only his job)."
Actually, the cost matters a great deal. The difference between 59 cents a day and 59 cents a second is over $50,000 a day. The statute under which he is charged probably (haven't looked it up) specifies a minimum dollar amount to make it a felony. Almost certainly over $1000. At 59 cents a day he would hav more than 4.6 bandwidth-years before he got to $1000.
I suspect that his best bet is to argue the facts: Not that he didn't do it but the dollar amount "taken" doesn't amount to a felony. Good luck.
And to think all this time I thought it was "Soylent Green is . . ."
Another good source for racks is ham fests. Lots of telcos swap the things out when they get mungy. I got a nice 6 footer with wheels and fans for $100. It was gross looking but it cleaned up nice. And you know you're just going to slap stickers all over it.
"Now, French on the other hand, is a different story. People in the US use French all the time when there are perfectly acceptable English subtitutes: lèse-majesté (detraction from dignity), par excellence (being the best kind), nouveau riche (new rich), etc. So in that case, we have no excuse. And of course, when people in the US say these French words, they pronounce them perfectly, much to the glee of French people everywhere." French has a certain, oh, I don't know what, je ne sais quoi? (Thanks Mr. Martin! I still remember when you were funny!)
"Why should the reverse (a common English word becoming a trademark for the very thing it means) be permitted?"
I think this is where we are fundamentally at odds. I agree that we (i.e. the US) should not permit common English words to become trademarks for the very things the word means. But I disagree that "Illustrator" does this. I think it is different enough, and that there are suitable, more generic alternatives to the word, from the underlying class of software programs that it can be a trademark. One of the main tests for a trademark is whether or not it has acquired distinctiveness by which they mean you think of the product when you hear the trademark. I think that when talking about graphics software, the word "illustrator" is likely to makepeople think of the Adobe product. Of course, you could have someone say "As a professional illustrator, I like program X." But distinctiveness needn't be universal.
I think "Illustrator" is a weak trademark and that a case against a piece of software that wasn't a vector graphics program but still called "killustrator" (an FPS for instance which would focus on the "kill" part), would be much harder. It is the particular facts of this situation that lead me to conclude that Killustrator is infringing an Adobe trademark.
I don't think that you think it is clear cut either. Your use of "arguably" when discussing the definition of "illustrator" indicates to me that you may think you are having to stretch your argument to make your case. Do you think that whatever level of genericness that you think "illustrator" has in this context is due to Adobe's marketing of their software? The common use of "Adobe Illustrator" as a two word name? Your points at the end about Xerox are correct. Is this what you think has happened? (I don't. Not yet anyway. But it is interesting.)
Of course it's fun! In responding to consumer demand, they'vemade the boot in dozens of flavors. My favorite is pina collada.
"I'm sorry, illustrator is in the dictionary but painterbrush is not. What is your point.
What is a stroller? Something to stroll with."
Last things first: "Stroller" is both a thing for transporting very small children and a person that strolls. "Illustrator" is defined by my OED 2nd Edition as "one who or that which illustrates, in the various senses of the verb." It is not a thing. It is a thing (including a person) that performs an action. In short, "stroller" is not analogous to "illustrator." Your criticism of Adobe's trademark (BTW, "adobe" means an unburnt brick baked in the sun. Where do you sit on that trademark?) would be better received if the name of the prodcut were "Adobe Illustrating." But it isn't.
My point is that just because a word is in the dictionary, it doesn't mean that it cannot be a trademark. And just because a word is a trademark, it doesn't mean that it cannot be used by other persons. You have to look at the context. "Generic," when discussing trademarks, means that there is no other reasonable way to refer to the thing than by that name.
Take "beer" (please!) for example. That tasty beverage made from water, malt, yeast and hops. Is there a "reasonable" way to refer to beer other than as "beer"? I wrote "That tasty beverage made from water, malt, yeast and hops," above. But I cannot imagine having to say "I'd like a bock tasty beverage made from water, malt, yeast and hops," everytime I wanted bock beer. So it would be improper for someone to trademark "Beer" as a name for "beer" and then prevent other epople from using it.
But "illustrator" in the context of software is not a generic term. Is there another reasonable name for what kind of software "Adobe Illustrator" is? What about "draw" or "drawing" software? Fewer sylables (always a good thing for me), no confusion between the person performing the act and the act itself. Seems pretty good to me.
Shakespeare wrote "a rose by any other name would smell as sweet" meaning that the name of the thing is not the essence of it. But when I call my new line of phased plasma rifles "Rose," I am not turning them into something that smells sweet. There is no relationship between the word rose and a phased plasma rifle in the 20 watt range. So I can get a trademark in the name Rose as applied to my rifles. And I can make somebody in Germany selling the "Krose" brand phased plasma rifle (or possibly even "Crows" due to the phonetic simularity. Tougher case.) stop selling it. "Rose" is a generic term for members of the Rosa genus. In other contexts, it is NOT generic.
As the other respondent pointed out, Adobe has trademarks in both names. I looked it up instead of spouting off. See the difference?
/. responses. You'd learn that there is nothing linking Adobe itself to these actions. Rather, it looks like some odd form of IP extortion allowed for under German law.
I assume that since you seem to think that appending a "k" to the front of a trademarked name when used in the trademark context is "really bad," you now, having been clued up on the various trademarks, think "killustrator" is "really bad."
And as long as we're cluing you in, you might want to reread the article and the
As the final stop on the clue train, if you think protecting your trademark is "fascism" and "evil," even when being overzealous, you need to correct that rectal / cranial inversion and study the 20th century's history.
OK, I'm done ranting now.
Because "Illustrator" is a real word, and somewhat suggestive of what the software does, it is a relatively weak mark. Essentially, Adobe only has rights in the word when used with graphics software. And even a raster/paint program might fall outside of the protected space.
;-) both our positions. The person you mentioned asked for "software for illustrations." I would emphasize that they were asking for *software* not for *illustrators*. You might say that this example shows that Adobe has an improper trademark. I would say that they have a weak mark, know it, and consequently are very active in policing it.
"Windex" and "Kleenex" are much stronger marks. They are made up words, but the "win" suggests some sort of glass application and "kleen" suggests a sanitary function. (That is, they are not as strong as completely arbitrary marks like "Kodak." Allegedly picked because Eastman liked the letter "k".) Still, you would be hard pressed to use either the word "Windex" or the word "Kleenex" in conjunction with anything and not have their lawyers bearing down on you.
But you might well be able to use "kleen" or or "nex" or "dex" and certainly "win". My point is that context is everything. You cannot stop the analysis at the point you find the word in the dictionary. You have to see if it is generic or overly descriptive in the context used.
I think that "software for illustrations" shows (I originally type "illustrates"
And you are definitely right about how people use kleenex and windex. Especially kleenex. One of the real dangers for a trademark holder is that their mark becomes so associated with the underlying product that it comes to *mean* the product. That is, it becomes generic. Kimberly-Clark has savage attack lawyers that look out for using the word "kleenex" with a lower case "k". The Coca-Cola Company actually hires people to go into restaurants they know sell Pepsi and order "a Coke." If the waitron brings them a beverage without first saying, "I'm sorry, we serve Pepsi. Is that OK?", they will take the beverage out for analysis and upon determining that it is indeed Pepsi, rain down like hellfire upon the restaurant. (Though they usually let them off with an extremely long-term contract for Coke.) They do this not just because it is fun if you are an attack lawyer, they do it because "coke" (with a lower-case "c") might become a generic term. And that would cost them billions.
So I'm guessing you use a "painterbrush" and sold the paintbrush?
"How in the world are we expected to check every possible name, or combination of a name that may be registered?"
Oh please. They called a drawing program "Killustrator" fercryinoutloud. How long did I have to search for that? ANd how could Adobe take it as anything but a taunt? But in any event, the PTO site is pretty good as are the search engines in simply finding occurances of a word. And when you hit the bigs, you can pay some specialized firm to name check for your spankin' new project. I suggest "no va".
A couple of quick points about trademarks. You cannot trademark the generic term for the product you want to name. That is, you couldn't get a trademark for the term "pencil" as applied to pencils. You cannot have "Pencil Brand Pencils." Duh. Notice, however, that I did not say you couldn't get a mark in a generic term. "Apple" is a gerneric term for the fruit of the apple tree. So no "Apple Brand Apples." But you may have heard of "Apple Computer." "Apple" is not the generic term for a computer so this is OK! You (or rather, Apple) can have the trademark. But you can't stop me from calling the fruit I harvest from apple trees "apples." And I can take "Apple Cars" in NYC which I can call the "Big Apple" as much as I want. Huzzah!
The word "apple" is a weak mark because it is so commonly used. But as applied to computers it is very strong. Trademarks run the gamut from those that are so weak they suggest what the underlying product is to those that are completely made up and thus very strong. A classic example of the latter is "Kodak," a completely made up word. I cannot sell "Kodak Brand Silverware" even though nobody would thnk it was made by the camera people. Why? Becasue George Eastman made up Kodak and they have a very strong mark.
While you are getting "clued up," remember that context is essential in examining genericness. I doubt you have ever referred to a piece of non-adobe software as "the illustrator software." It's not grammatically correct and worse, it would make a person sound like a doofus.
So, no, the situation you describe where layout people for the New Yorker live in fear of accidently referring to a cartoonist as, *choke*, an ILLUSTRATOR and being sued into oblivion cannot happen. OTOH, I'd like to see a fish animation program called "Gillistrator." That would be cool.