On Wednesday 06 December 2006 14:58, Michael Poole wrote: > I am no more kidding about trademark holdings than I would about > copyright or patent holdings -- cases which probably make it to trial > or appeal about as rarely as trademark cases.
Ah, but this is not true. Copyright and patents both generate lots of appeals. Copyrights because there is no administrative appeal system and patents because there is no alternative if you want to access the patented technology. Heck, there is an entire U.S. Circuit court dedicated to deciding patent appeals. > I could ask whether you are kidding about "the legal community" coming > to "reasonable agreements", but I think I know the answer. Popular stereotypes of lawyers are about as useful to me as popular stereotypes of linux users. > I am no more kidding about trademark holdings than I would about > copyright or patent holdings -- cases which probably make it to trial > or appeal about as rarely as trademark cases. I could ask whether you > are kidding about "the legal community" coming to "reasonable > agreements", but I think I know the answer. > > For example, from Mattel, Inc. v. MCA Records, 296 F.3d 894,900 (9th > Cir. 2002): > > Simply put, the trademark owner does not have the right to control > public discourse whenever the public imbues his mark with a meaning > beyond its source-identifying function. See Anti-Monopoly, > Inc. v. Gen Mills Fun Group, 611 F.2d 296, 301 (9th Cir. 1979). > ("It is the source-denoting function which trademark laws protect, > and nothing more.") > > In this case, it is not just the *public* that imbued the Firefox mark > with a meaning beyond its source-identifying function. The Mozilla > Foundation actively contributed to that through the prior policy on > use of the name. What meaning does Firefox have beyond identifying it as "a browser made by the Mozilla Foundation"? (oh, and the actual name of a kind of fox that was mentioned earlier). I don't want to give away the farm here, but if you can show another meaning then you've really got an argument against my claim. > There is also the whole "in commerce" aspect of trademark laws. I > think it is no understatement to say that it is rather hard to > plausibly claim that any single Debian package is a commercial > article. Hardly an understatement. The fact that the product is given away for free does not means it isn't commercial. Commerce, for the purposes of trademark law, is simply exchange. The exchange need not be two way and it need not be for money. All you need is a good or service available to the public. Iceweasel/Firefox are goods which their producers have put into the stream of commerce. To prove my point with logic (instead of having to actually look up a case)... Company A sells product "foo" for cash, Company B comes along, produces a competing product "bar" but labels in "foo" and gives it away for free. Company A has suffered a harm to it's product's mark and Company B is competing in an "unfair" manner. -- Sean Kellogg c: 831.818.6940 e: [EMAIL PROTECTED] w: http://blog.probonogeek.org/ So, let go ...Jump in ...Oh well, what you waiting for? ...it's all right ...'Cause there's beauty in the breakdown