Date: Wed, 27 Aug 2003 09:23:52 -0700 From: underway@comcast.net (Gary W. Swearingen) To: Brooks Davis <brooks@one-eyed-alien.net> Cc: "Simon L. Nielsen" <simon@freebsd.org> Subject: Re: Another "annoying" trademark :) Message-ID: <sjvfsjnk6f.fsj@mail.comcast.net> In-Reply-To: <20030826214645.GD3101@Odin.AC.HMC.Edu> (Brooks Davis's message of "Tue, 26 Aug 2003 14:46:45 -0700") References: <20030826075148.GA806@nosferatu.blackend.org> <20030826122255.GA403@FreeBSD.org> <507k50nx1v.k50@mail.comcast.net> <20030826214645.GD3101@Odin.AC.HMC.Edu>
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Brooks Davis <brooks@one-eyed-alien.net> writes: > On another project I've been associated with, a couple trademarks were > registered. Once they started the process, the lawyers wanted them to > always use the trademarked terms and always mark them with (tm) symbols. > They also had to change to using the circle-R form fairly quickly. As I > understood it, they didn't need to worry much about people using the > wrong form as long as they weren't associated with the project. I also am not a lawyer and this is just lay opinion, and not advice. A trademark owner uses (TM) and (R) symbols (or words also suggested in the statutes) to let people know that someone is claiming ownership of the trademark. They should also make an explicit claim of ownership using their name. Both discourage misuse and can help out in a law suit, even when people would be expected to know that someone owns the trademark such as when it is well-known or has been registered. But by the same theory, if to less effect, a trademark owner should prohibit (to the extent allowed) the use of his trademark by others without a similar marking nor even without naming the owner. So that many companies spend a good deal of effort getting people to use "Jerco(TM) is a trademark or registered trademark of Jercorp". (I've also read rumors that trademarks can lose their trademark status if they become too widely used otherwise, but I'm sure that's very rare and an overblown reason for enforcing trademark markings, and usually impossible to prevent anyway because most use is "fair use".) But we all know that most companies are fairly loose about all of this, especially when it would require hassling potential customers about it. (I know that I've had very bad feelings toward Disney(R) starting as a young boy when my brother was told he couldn't put a Disney(R) image on his boat, and hearing of their nastiness ever since. I won't shop in a Disney(R) store until it's the last one.) Most companies seem to be satisfied with the hilariously-redundant statement something like "All marks are owned by thier owners.", but it's probably good self-defense on the part of users to include a "(TM)" and naming of the owner, when practical. I'll make this even longer by noting that at least one person who thought he was running a non-commercial website, was determined by a court to be running a commercial website solely (IIRC) because it was deemed to be conducting commercial advertising, and regardless of the fact that the site was a .org run by one guy who funded the site out of his own pocket except for the few ad dollars that dribbled in. Because it was deemed commercial, he lost important fair use rights which restricted his ability to use other's IP. (IIRC, people were pasting news articles into his discussion forum messages. Some of you probably remember more about the case than I do.) WWW.FreeBSD.org seems to be doing a bit of advertising, but I haven't thought through the consequences of it being considered a commercial activity.
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