Re: [LAD] Impro-Visor created on sourceforge

On Saturday 08 August 2009 12:34:26 you wrote:
> On Sat, Aug 8, 2009 at 4:41 AM, Raymond Martin <laseray@gmail.com> 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.

No, you need an international trademark to have it apply in all countries.
Trademark laws are different in different places. A company or whoever
must register their trademark internationally to have it apply in all
locations. Having it one country does not automatically extend it to others.

Go check SF policy on trademarks. They do not deal with them because
they differ from place to place.

>
>
> 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

There is actually nothing wrong, but if there were he would be guilty first.
No trademark infringement of even the least kind has occurred on my
part. Try to show any different. You cannot.

>
> 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.

I only have a project called Improvisor, no software, no products. Even if
there were the least chance of infringement it would all be directed at
the Impro-Visor program not a remote SF project with no products of
its own.

>
> 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.

Try googling "fireball" and see how many things have that name as a company or
product. They aren't attacking each other over it. I have an old quantum
fireball disk drive and there is fireball whisky. They aren't going to file
trademark infringement cases against each other over this, ever.

Obviously, you do not understand trademarks much.

> 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/polaro
>id.htm> .
>
> "
>
> Note that damage to sales is not mentioned as a factor.
>

Yes this would apply for the commercial product against any others that
are sold. It won't apply against free software because nothing is sold.

Something has to be for sale for there to be any infringement. Harvard law
shows that I am right in the case of free software to not bother with
trademark concerns.

Did you actually read the line "the use of a trademark in connection with the
sale of a good constitutes infringement"?

That was a very long post just to have your own proof contradict you.

Raymond

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Received on Sun Aug 9 00:15:01 2009