Re: [LAD] Impro-Visor created on sourceforge

On Sat, Aug 8, 2009 at 4:41 AM, Raymond Martin <laseray@email-addr-hidden> wrote:

> Another fool. Trademarks apply to commercial interests, the program is
> non-commercial in nature. Thus it would be very difficult for anything
> to be done about this for creating a free program from a free program.
>

Sorry you are incorrect. Then again you have shown a strong desire not to
admit when this is the case in past discussions, so I don't expect you to
change your mind.

Trademarks apply to any product, be it software or physical, or company. A
trademark is simply an identifying mark that differentiates something from
the competition. This applies to Open Source software just the same as it
does any other.

> Maybe you should check the fact that there is already another program
> called
> improvisor that exists that is not Impro-Visor, it is a commercial company
> that could claim trademark infringement against Impro-Visor.
>

Possibly, I don't know the situation or history with those products. It is
completely seperate from this situation however.

>
> So if anybody is in a problem it will be Impro-Visor first.
>

No, it will be whoever decides to defend their trademark first.

There is a reason. A scumbag company forced trademark issues to the front
> even though they were doing FOSS. Trademarks in FOSS are just as bad as
> software patents. Too bad most people do not get that.

That is your opinion. I would disagree, very strongly in fact.

> Okay, maybe for names and logos used by FLOSS, the creative commons
> should be forced as an agreement or something similar to this.
>

Once again, see what i already wrote. If a company does not defend its
trademark, then the rights to that trademark are lost. Trademarks HAVE to
be defended to remain valid. Thus forcing the CC isn't really an option as
much as I enjoy the concept of the CC licensing.

Trademarks can only be in violation when they are on similar things.

 Once again, WRONG. Trademark violations are when the use of a similar
name, logo, image, etc. causes confusion with the original product. The
products don't necessarily HAVE to be similar, just cause confusion with the
trademark.

Something funny about confusing names. For my needs jconv can be a very
> good audio application and a very useless Japanese code conversion.

Which is why this does not apply as a trademark issue, it does not cause
confusion with either products.

 So this would not be okay in Germany only, if there was a trademark
> applicable in Germany.

Wrong, see above.

Then Bob is guilty first and my project name is just due to his applications
> name. Who is more guilty, a single person trying to do FOSS or a professor
> and educational institution that should be in a better position and act
> more
> appropriately? If my name is similar to theirs by derivation and that is
> similar to the commercial one, then Bob and his ilk have unclean hands
> before
> I ever made a project.

Yes someone else did something wrong, I am just copying them so I must be in
the right. That is EXACTLY it. /sarcasm

Seriously, you need to understand what you are writing about much better
before you spout off drivel as fact. I am not a lawyer, but I obviously
understand trademark law much better than you do. Not only that as a moral
or ethical issue which you seem to think you are taking the high ground on,
this is just wrong.

Since there is so much confusion surrounding how copyrights work
> in FOSS, it should be no surprise that similar misunderstandings exist
> for trademarks in the same situation.

The irony is amazing.

 This is FOSS, not commercial enterprise,
things do not need to operate exactly the same as in proprietary
situations. That goes as much for trademarks as it does for copyrights.

Idealogoically you are correct. However the same LAWS apply to both.

They made all kinds of crazy claims
> and did not understand how futile it is for one FOSS project to try
> to go after another one. I still have my similar name even though
> they have a trademark. Trademarks are for commercial interest.

I am going to stop repeating myself correcting you on trademarks.

Claimed infringements on trademarks have to show that the existence
> of a similarly named product causes or potentially causes damage
> to the trademark holders product, company, bottom line, and so on.
>

Or confusion in the marketplace with that product.

I suggest you read up...
http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm

Specifically this part...

"

7. What constitutes trademark
infringement?<http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm#toc>

If a party owns the rights to a particular trademark, that party can sue
subsequent parties for trademark infringement. 15 U.S.C. �� 1114,
1125<http://www4.law.cornell.edu/uscode/15/1114.html>.
The standard is "likelihood of confusion." To be more specific, the use of a
trademark in connection with the sale of a good constitutes infringement if
it is likely to cause consumer confusion as to the source of those goods or
as to the sponsorship or approval of such goods. In deciding whether
consumers are likely to be confused, the courts will typically look to a
number of factors, including: (1) the strength of the mark; (2) the
proximity of the goods; (3) the similarity of the marks; (4) evidence of
actual confusion; (5) the similarity of marketing channels used; (6) the
degree of caution exercised by the typical purchaser; (7) the defendant's
intent. Polaroid Corp. v. Polarad Elect. Corp., 287 F.2d 492 (2d Cir.),
cert. denied, 368 U.S. 820
(1961)<http://cyber.law.harvard.edu/metaschool/fisher/domain/tmcases/polaroid.htm>
.

"

Note that damage to sales is not mentioned as a factor.

At this point I am done with this topic, Harvard has said anything I could
on the topic in a pretty clear article linked to above, and I certainly take
their word on this well above Raymond's.

     Seablade

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Received on Sat Aug 8 20:15:04 2009