RE: [OT] Harassment of open source developer !

[Huebel, David]

Bayer lost the trademark in the US in the case
Bayer Co. v. United Drug Co., 272 F. 505 (S.D.N.Y. 1921),
in which the term "aspirin" was ruled to be generic. 

Before 1915, Bayer marketed acetylsalicylic acid powder to 
physicians and pharmacists under the name "Aspirin," the same name 
under which it was sold in Europe.  Pharmacists then packaged the 
powder into pills and sold it to consumers as "Aspirin," sometimes 
adding the name of their own establishment.  Starting in 1915, Bayer 
began to ensure that its Aspirin product was sold under the Bayer 
name.

The court ruled that although the Bayer Company's advertisements (in 
trade magazines, etc.) made it clear to physicians and pharmacists 
that Aspirin meant acetylsalicylic acid manufactured by Bayer, 
since the pharmacists who sold it to consumers in the years before
1915 did not identify it as a Bayer product, the term had become
generic in common usage.  The court even ruled that Bayer's post-1915
packaging and marketing of aspirin reflected the word's generic
meaning among consumers.

Strangely enough, since the same drug manufactured by other 
companies was sold under other names, and rarely if at all under 
the name Aspirin, it was the sale of Bayer-made Aspirin that  
invalidated the trademark, merely because the consumers weren't 
consistently reminded of the connection between the name and 
the manufacturer.

Although both parties cited Bayer's US patent, the judge decided
the case of entirely different grounds.  Neither did Bayer's 
German roots seem to have any relevance to the decision (Bayer Co. 
as a party in the case was a U.S. corporation based in New York).  
Adobe's (or their lawyers') demand for money from the KIllustrator 
developers is indefensible, but the logic of this case gives me a 
little more understanding of the lengths companies go to trying 
to protect their trademarks.

Here's the decision, including a more comprehensive description of
the facts of the case:

http://cyber.law.harvard.edu/metaschool/fisher/domain/tmcases/bayer.htm



on Wed, Jul 04, 2001 at 07:04:32PM -0400, Carl Fink ([EMAIL PROTECTED])
wrote:
> On Wed, Jul 04, 2001 at 05:39:33PM -0400, Jason Healy wrote:
> > Probably because if you don't protect your trademarks in this country,
> > they fall into the public domain.  That's why you can say "asprin"
> > when you want to cure a headache (because Bayer didn't defend its
> > trademark) . . . 
> 
> Urban myth.  Actually the trademark was invalidated after World War One
(in
> the Versaille Treaty, according to some sources I've seen) because Bayer
was
> a German company.  It's still a valid mark in Europe.

Not sure if it was after the treaty or during the war.  The US branch of
the company was liquidated/nationalized/appropriated by the US, and the
trademark voided, according to several different angles I've heard.
I've researched this casually a few times over the years but never
really found a definitive answer, odd, as it's such a striking example
of trademark loss.

Loss of a trademark is not altogether straightforward, Adobe appears to
be acting overly aggressively in this case.

-- 
Karsten M. Self http://kmself.home.netcom.com/
 What part of "Gestalt" don't you understand?   There is no K5 cabal
  http://gestalt-system.sourceforge.net/ http://www.kuro5hin.org
   Are these opinions my employer's?  Hah!  I don't believe them myself!

Re: [OT] Harassment of open source developer !

[Karsten M. Self]

on Wed, Jul 04, 2001 at 07:04:32PM -0400, Carl Fink ([EMAIL PROTECTED]) wrote:
> On Wed, Jul 04, 2001 at 05:39:33PM -0400, Jason Healy wrote:
> > Probably because if you don't protect your trademarks in this country,
> > they fall into the public domain.  That's why you can say "asprin"
> > when you want to cure a headache (because Bayer didn't defend its
> > trademark) . . . 
> 
> Urban myth.  Actually the trademark was invalidated after World War One (in
> the Versaille Treaty, according to some sources I've seen) because Bayer was
> a German company.  It's still a valid mark in Europe.

Not sure if it was after the treaty or during the war.  The US branch of
the company was liquidated/nationalized/appropriated by the US, and the
trademark voided, according to several different angles I've heard.
I've researched this casually a few times over the years but never
really found a definitive answer, odd, as it's such a striking example
of trademark loss.

Loss of a trademark is not altogether straightforward, Adobe appears to
be acting overly aggressively in this case.

-- 
Karsten M. Self http://kmself.home.netcom.com/
 What part of "Gestalt" don't you understand?   There is no K5 cabal
  http://gestalt-system.sourceforge.net/ http://www.kuro5hin.org
   Are these opinions my employer's?  Hah!  I don't believe them myself!


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Re: [OT] Harassment of open source developer !

[John Hasler]

csj writes:
> How about Kill Illustrator? It sounds like it anyway - KILLustrator.

That would infringe as much as Killustrator does.  The trick with FAIR is
that you can let everyone know what it stands for and not infringe as long
as you don't use the word 'Illustrator' in the labeling of the product.
-- 
John Hasler
[EMAIL PROTECTED] (John Hasler)
Dancing Horse Hill
Elmwood, WI

Re: [OT] Harassment of open source developer !

[csj]

On Sunday 08 July 2001 10:12, John Hasler wrote:
> Erik Steffl wrote:
> > they should rename KIllustrator to: Adobe Illustrator Replacement
> >
> > that should be covered by fair use (it only refers to adobe
> > illustrator which is allowed)
>
> "Fair use" is a term in copyright law.  It has no meaningful
> application that I know of to trademarks.
>
> Aaron Brashears writes:
> > How about one better:
> >
> > Free
> > Adobe
> > Illustrator
> > Replacement
> >
> > aka: FAIR
>
> I _like_ that.

How about Kill Illustrator? It sounds like it anyway - KILLustrator.

Re: [OT] Harassment of open source developer !

[Erik Steffl]

John Hasler wrote:
> 
> Erik Steffl wrote:
> > they should rename KIllustrator to: Adobe Illustrator Replacement
> >
> > that should be covered by fair use (it only refers to adobe
> > illustrator which is allowed)
> 
> "Fair use" is a term in copyright law.  It has no meaningful application
> that I know of to trademarks.

  yes, what I meant is similar concept, you can use use trademark in
certain ways (like for unrelated purpose or when quoting or talking
about it or the product/service whatever the trademark refers to etc.)

erik

Re: [OT] Harassment of open source developer !

[John Hasler]

Erik Steffl wrote:
> they should rename KIllustrator to: Adobe Illustrator Replacement
> 
> that should be covered by fair use (it only refers to adobe
> illustrator which is allowed)

"Fair use" is a term in copyright law.  It has no meaningful application
that I know of to trademarks.

Aaron Brashears writes:
> How about one better:

> Free
> Adobe
> Illustrator
> Replacement

> aka: FAIR

I _like_ that.
-- 
John Hasler
[EMAIL PROTECTED]
Dancing Horse Hill
Elmwood, Wisconsin

Re: [OT] Harassment of open source developer !

[Aaron Brashears]

On Wed, Jul 04, 2001 at 12:52:48PM -0700, Erik Steffl wrote:
>   they should rename KIllustrator to: Adobe Illustrator Replacement
> 
>   that should be covered by fair use (it only refers to adobe
> illustrator which is allowed)

How about one better:

Free
Adobe
Illustrator
Replacement

aka: FAIR

Re: [OT] Harassment of open source developer !

[John Hasler]

Jason writes:
> ...but not Xerox(tm) to mean photocopying, Kleenex(tm) to mean facial
> tissues, and Ziplock(tm) to refer to plastic storage bags.

I can say all of those things, as long as I am not doing so in an effort to
sell anything.

Michael A. Miller writes:
> Nor spam to mean SPAM(tm) luncheon meat.

That as well.  "Treat is just another brand of Spam".
-- 
John Hasler
[EMAIL PROTECTED] (John Hasler)
Dancing Horse Hill
Elmwood, WI

Re: [OT] Harassment of open source developer !

[Michael A. Miller]

> "Jason" == Jason Healy <[EMAIL PROTECTED]> writes:

> That's why you can say "asprin" when you want to cure a
> headache (because Bayer didn't defend its trademark), but
> not Xerox(tm) to mean photocopying, Kleenex(tm) to mean
> facial tissues, and Ziplock(tm) to refer to plastic storage
> bags.

Nor spam to mean SPAM(tm) luncheon meat.

Re: [users] Re: [OT] Harassment of open source developer !

[Martin F. Krafft]

also sprach Craig Dickson (on Thu, 05 Jul 2001 03:42:50PM -0700):
> I don't understand the distinction you're making. Is "illustrator" a word
> in German also? The only difference I see in "Illustrator vs. illustrator"
> is the capitalization.

that's the difference. yes, Illustrator is a german word, although i
don't think i have heard it used before.

martin;  (greetings from the heart of the sun.)
  \ echo mailto: !#^."<*>"|tr "<*> mailto:"; [EMAIL PROTECTED]
-- 
q:  how did you get into artificial intelligence?
a:  seemed logical -- i didn't have any real intelligence.


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Re: [OT] Harassment of open source developer !

[John Hasler]

Joe 'Zonker' Brockmeier writes:
> However, Prarie Farms shouldn't be able to go after someone else for
> selling KMilk or whatever.

They can't, as long as the product in question is milk.  If the product in
question is software or motor oil, they can.

> Could have, but the developer shouldn't *have* to choose a less descriptive
> word. The word illustrator is still quite common.

But it is not in common use as a generic term for vector graphics programs.
-- 
John Hasler
[EMAIL PROTECTED] (John Hasler)
Dancing Horse Hill
Elmwood, WI

Re: [OT] Harassment of open source developer !

[Craig Dickson]

der.hans wrote:

> Actually, this appears to be the German way in this case :). First it's
> in .de. Second, notice that it's a German word, not an English word, e.g.
> Illustrator vs. illustrator. He should change it to Killustrator and see
> if the .us portion of Adobe comes after him ;-).

I don't understand the distinction you're making. Is "illustrator" a word
in German also? The only difference I see in "Illustrator vs. illustrator"
is the capitalization.

> The real problem is that they apparently didn't just ask that he change
> it. The 4.000 DM bill is what sucks the most.

Most likely, these lawyers are just cheap ambulance-chasers who have no
business relationship with Adobe, and are trying to subsidize their
pathetic existence by billing the KIllustrator developers. As I
understand it, in Germany, any lawyer can attack a copyright or
trademark infringement in this way without the awareness of the
copyright or trademark owner. Which seems like a pretty stupid way for
the system to work, unless of course, lawyers are as influential in the
German legislature as they are in the US, in which case their motivation
is perfectly comprehensible, though no less contemptible.

Craig

Re: [OT] Harassment of open source developer !

[Joe 'Zonker' Brockmeier]

On Thu, 5 Jul 2001, der.hans wrote:

> Am 05. Jul, 2001 schwäzte Jan Ulrich Hasecke so:
> 
> > "Eric G. Miller"  writes:
> > 
> > > Protest all you like, but I think Adobe probably has a valid claim of
> > > trademark infringement.  
> > 
> > Today KIllustrator, tomorrow M$ sues KWord and KOffice. Every project
> > can be sued this way, it only a question of ill fantasy. In the end
> > you can only use numbers for your projects. 
> > 
> > If we do not defend our rights, who should? The american way of buying
> > words out of our languages must be stopped. So I think it is good to
> > protest.
> 
> Actually, this appears to be the German way in this case :). First it's
> in .de. Second, notice that it's a German word, not an English word, e.g.
> Illustrator vs. illustrator. He should change it to Killustrator and see if
> the .us portion of Adobe comes after him ;-).
> 
> The real problem isn't that it's a normal word being used, but that it
> appears to be a brand X version of a name brand. It's the 'K "Illustrator"'
> vs. the 'Adobe "Illustrator"'.

But the fact remains that "Illustrator" is a word that can be found
in the English dictionary and a company should not be able to trademark
it alone. 

For instance, if we were talking about food instead of software -
Prarie Farms Milk should be a valid trademark - only one company (Prarie
Farms) should be able to put their name on milk and sell it. However,
Prarie Farms shouldn't be able to go after someone else for selling
KMilk or whatever. 

> Still stupid, but illustrator isn't near as common a word as say word or
> draw or office. There are also other things that could've been used, e.g.
> KVectorGraphics, KArtist or probably even K Illustration Package.

Could have, but the developer shouldn't *have* to choose a less descriptive
word. The word illustrator is still quite common. 

> I don't know if I'd rather have companies getting to trademark words in
> specific industries or have them throwing in more words, e.g. kleenex,
> crescent wrench ( the crescent wrench co went out of business long ago ),
> Q-tip, bandaid, etc. All those stodgy profs in .de deciding to change the
> language is bad enough[1]. Letting marketing weasels do it is a true horror
> of modern times ;-).

Well, that's a linguist's debate there. I tend to enjoy some new words,
it's when existing words get perverted to mean something else that it
bugs me. For instance, until I was about ten or twelve, the word party
wasn't a verb... It still annoys me when people use it as such. 

> The real problem is that they apparently didn't just ask that he change
> it. The 4.000 DM bill is what sucks the most.

Yup. 

I think everyone should send Adobe a polite letter or email - POLITE, mind
you - asking that they quit trying to crucify the guy and pointing out how
silly the action is. 

If it's not Adobe's intent, and the lawyers are going it on their own in
Adobe's name, then they need to reign in their sharks. 

Take care,

Zonker
--
Joe 'Zonker' Brockmeier -=- [EMAIL PROTECTED]
http://www.DissociatedPress.net/
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
"Well, I've wrestled with reality for 35 years, doctor, 
and I'm happy to state I finally won out over it."
 -- Elwood P. Dowd 

Re: [OT] Harassment of open source developer !

[der.hans]

Am 05. Jul, 2001 schwäzte Jan Ulrich Hasecke so:

> "Eric G. Miller"  writes:
> 
> > Protest all you like, but I think Adobe probably has a valid claim of
> > trademark infringement.  
> 
> Today KIllustrator, tomorrow M$ sues KWord and KOffice. Every project
> can be sued this way, it only a question of ill fantasy. In the end
> you can only use numbers for your projects. 
> 
> If we do not defend our rights, who should? The american way of buying
> words out of our languages must be stopped. So I think it is good to
> protest.

Actually, this appears to be the German way in this case :). First it's
in .de. Second, notice that it's a German word, not an English word, e.g.
Illustrator vs. illustrator. He should change it to Killustrator and see if
the .us portion of Adobe comes after him ;-).

The real problem isn't that it's a normal word being used, but that it
appears to be a brand X version of a name brand. It's the 'K "Illustrator"'
vs. the 'Adobe "Illustrator"'.

Still stupid, but illustrator isn't near as common a word as say word or
draw or office. There are also other things that could've been used, e.g.
KVectorGraphics, KArtist or probably even K Illustration Package.

I don't know if I'd rather have companies getting to trademark words in
specific industries or have them throwing in more words, e.g. kleenex,
crescent wrench ( the crescent wrench co went out of business long ago ),
Q-tip, bandaid, etc. All those stodgy profs in .de deciding to change the
language is bad enough[1]. Letting marketing weasels do it is a true horror
of modern times ;-).

The real problem is that they apparently didn't just ask that he change
it. The 4.000 DM bill is what sucks the most.

cioa,

der.hans

[1] I like »Donaudampfschifffahrtskapitänsgesellschaftpräsident« to have 3
fs. Not as good as Pfeiffer »mit 3 F«, but still good ;-).
-- 
# [EMAIL PROTECTED] home.pages.de/~lufthans/ www.DevelopOnline.com
#  Two roads diverged in a wood, and I --
#  I took the one less traveled by,
#  And that has made all the difference. -- Robert Frost
#  I, OTOH, prefer to just go stomping through the desert... - der.hans

Re: [OT] Harassment of open source developer

[Paul Huygen]

Balbir Thomas <[EMAIL PROTECTED]> wrote:

>  Adobe lawyers ask
> developer of killustrator to pay fines for using a name that abuses
> their trade mark illustrator.

This reminds me of a similar case in the Netherlands, about ten years
ago. About one hundred years ago some enthousiastic bicycle riders
founded the "general bicylists society". In Dutch it was named
ANWB, abbreviation of "Algemene Nederlandse Wielrijders
Bond". However, in the course of the years, this society turned more
or less away from bicyclists and became mainly an automobile service
organization and lobby club. Some ten years age bicyclysts who were
dissatisfied with this development, founded an alternative "Real Dutch
Bicyclists Society" (ENWB, Echte Nederlandse Wielrijders Bond). The
ANWB sued the ENWB because their name was too similar with ANWB, and,
unfortunately, in the end the ENWB had to change their name.

Paul Huygen

Re: [OT] Harassment of open source developer !

[Antonio Rodriguez]

> Today KIllustrator, tomorrow M$ sues KWord and KOffice. Every project
> can be sued this way, it only a question of ill fantasy. In the end
> you can only use numbers for your projects.
>
> If we do not defend our rights, who should? The american way of buying
> words out of our languages must be stopped. So I think it is good to
> protest.

There you are! There are things money can't buy. For everything else, come
to the USA.
Serioulsy now: I think the practice of considering subsets (words, phrases,
wahtever) of any human language property of a group of humans
(0<=size<=\infty) is very stupid. Who the heck said that because XYZ Co.
decided to use sh*t as their trade mark, we will be restricted henceforth in
the use of the word Nevertheless it happens, and we accept it. So, we
are full of it.

Re: [OT] Harassment of open source developer !

[Thomas J. Hamman]

Maybe I'm misremembering, but...

The real problem isn't even being mentioned in this thread.  The
developer of Killustrator is willing to change the name; the problem is
that the lawyers in Germany (possibly quite independently of Adobe) are
demanding lots of money from one of the developers, to "cover their
legal expenses".  This isn't a "Your program uses Adobe's trademark so
change the name" thing, this is a "Your program uses Adobe's trademark
so change the name and give us lots of money for the trouble of sending
you this notice even though you haven't been warned until now, and if
you don't give us the money we'll sue you for a lot more money."

-- 
Tom
"When you meet someone better than yourself, turn your thoughts to
becoming his equal. When you meet someone not as good as you are, look
within and examine your own self."
-Confucius

Re: [OT] Harassment of open source developer !

[Eric G. Miller]

On Thu, Jul 05, 2001 at 04:23:29PM +0200, Jan Ulrich Hasecke wrote:
> Today KIllustrator, tomorrow M$ sues KWord and KOffice. Every project
> can be sued this way, it only a question of ill fantasy. In the end
> you can only use numbers for your projects. 

I think there is a distinction here.  While Abobe only has a trademark
on "Adobe Illustrator", I'm not aware of other vector drawing programs
that use the word "illustrator" in the name.  However, both "Word" and
"Office" have been used multiple times in names for document editing
apps and productivity suites.  So, the brand recognition with a part of
the "mark" is lower.  Now, if you're aware of one or more vector drawing
programs in existence that use "illustrator" in the name (other than
KIllustator), and have done so for some time, then I think the argument
against Adobe get stronger.  

> If we do not defend our rights, who should? The american way of buying
> words out of our languages must be stopped. So I think it is good to
> protest.

Anyone who claims KIllustrator didn't come up with that name as a play
on Adobe Illustrator is being disingenuous.  The words aren't bought out
of the language, they are just reserved in very narrow uses to avoid
consumer confusion over products and manufacturers (whomever it might
be).

-- 
Eric G. Miller 

Re: [OT] Harassment of open source developer !

[Joe 'Zonker' Brockmeier]

On Wed, 4 Jul 2001, Eric G. Miller wrote:

> On Wed, Jul 04, 2001 at 03:43:56PM -0500, Balbir Thomas wrote:
> > I would believe the ethical way to deal with an opensource developer,
> > who doesn't profit from his products is to contact him first, rather
> > than throw a bunch of law dogs at him. After all what kind of a person
> > or company would want to levy a financial burden on a man who has
> > contributed his time and resources, for a community benifit . Would
> > you wan't to do that to Abe L. ?  Adobe did no such thing . 
> 
> Ain't no benefit to Adobe if KIllustrator actually becomes competive. I
> understand your point that maybe Adobe should've contacted the developer
> in a less threatening manner first...  I don't imagine Adobe will persue
> this matter unless the KIllustrator authors don't change the name.  If
> they continued to pursue civil damages after a name change, then I can
> see getting a bit irate.

Actually, from what I read, the law firm is seeking financial damages
around $2K even though the developer has already said he'd change the
name - and the law firm won't confirm or deny that Adobe directly asked
for them to take this action. This may be a case of a firm being on
retainer by Adobe and going after a little extra cash without the tacit
approval of Adobe themselves - or Adobe may just be vindictive.

Either way, the guy wasn't given an opportunity to change the name -
which he shouldn't have to do anyway, since "illustrator" is a commonly
used word in the English language and no one should be able to trademark
a commonly used word by itself. "Adobe Illustrator" is clearly the
property of Adobe alone, but naming a product "Killustrator" should
be protected. 

I really wish a week could go by without hearing about some conflict
in the computing industry. It's really depressing to see multi-million
or multi-billion dollar companies or high-profile developers who are
totally unable to comport themselves with the same ethics and dignity
that we expect from six-year-olds. I mean, really - what's the difference
between Adobe trying to attack an Open Source project that's not doing
them any harm and a small child running to Mommy because her brother
made a face? Geez, grow up. 

Take care,

Zonker
--
Joe 'Zonker' Brockmeier -=- [EMAIL PROTECTED]
http://www.DissociatedPress.net/
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
"Well, I've wrestled with reality for 35 years, doctor, 
and I'm happy to state I finally won out over it."
 -- Elwood P. Dowd 

Re: [OT] Harassment of open source developer !

[Andrew Dixon]

"der.hans" wrote:
> 
> Am 04. Jul, 2001 schwäzte Balbir Thomas so:
> 
> > Yet another case of open source developers being harassed. Adobe lawyers
> > ask developer of killustrator to pay fines for using a name that abuses
> > their trade mark illustrator. Go read about it at slashdot , and then
> > give your feedback to Adobe. I already did. We can't let such harassment
> > go without being protested. If I were a conspiracy theorist I would see
> > a pattern here . While corporation are leagly portected to indulge in
> > some kinds of "negative advertising" as a "competitive stratergy" open
> > source developer are sued because the english language words are now
> > "trademarks".
> 
> Nothing new. In the 80's a New Yorker was sued for selling Hebrew Bookshelf
> or something. m$ said it infringed on their "bookshelf" series. It was
> software, so he lost ( or couldn't fight it, don't know which ).
> 
> Try writing a "nutshell" book on something to do with computers and see what
> kind of messages you get from Tim O'Reilly ;-). He's even on our side and I
> still bet he'd sue.
> 

I bet you're right that you'd get a lawsuit but, and I don't know much
about the law so anyone else feel free to make corrections, I don't
believe that you can trademark words that are in common use such as
"bookshelf" or "nutshell".  

On the other hand, I've got "Perl in a Nutshell" right here and it seems
to contradict what I've just said.  Here's what it says about it's
trademarks:

Nutshell Handbook, the Nutshell Handbook logo, and the O'Reilly logo
are registered trademarks of O'Reilly & Associates, Inc.  The
association between the image of a camel and the topic of Perl is a
trademark of O'Reilly & Associates.

So I don't believe that just by using "nutshell" in your title you'd be
infringing on their trademark but they probably would sue you and the
outcome would depend on the interpretation of the phrase "Nutshell
Handbook".

later,
Andy

Re: [OT] Harassment of open source developer !

[Jan Ulrich Hasecke]

"Eric G. Miller"  writes:

> Protest all you like, but I think Adobe probably has a valid claim of
> trademark infringement.  

Today KIllustrator, tomorrow M$ sues KWord and KOffice. Every project
can be sued this way, it only a question of ill fantasy. In the end
you can only use numbers for your projects. 

If we do not defend our rights, who should? The american way of buying
words out of our languages must be stopped. So I think it is good to
protest.

Ciao!
juh

-- 
Heinrich und Daniel
http://www.sudelbuch.de/2001/20010217.html

Re: [OT] Harassment of open source developer !

[John Foster]

Carl Fink wrote:
 Another point:  since "Illustrator" is a good description of the
activity
> being performed by the product, it's probably not a defensible trademark.
> (Note: I'm not a lawyer, and am giving no one legal advice.) By law, you
> can't trademark a description of the product -- for instance, no one can
> trademark "soap" and refuse to let anyone else say their product contains
> soap.  However, to defend this legal point would require way more money than
> it's presumably worth to the KIllustrator developers, since they aren't
> getting paid and Adobe has a huge budget for this stuff.
---
I totally agree with the exception that I think it's a damn shame that
they CAN get away with pushing the k folks around simply because they
have deep pockets. If they were based here in the US at least they would
have the ACLU  or some other watchdog agency to look out for them. 
John

Re: [OT] Harassment of open source developer !

[D-Man]

On Wed, Jul 04, 2001 at 03:43:56PM -0500, Balbir Thomas wrote:
[snip]
 
| I would believe the ethical way to deal with [disagreements] is to
| contact [the other party] first

Agreed (with obvious editorial license taken ;-)).


On a better note, a while ago some company contacted John Harper
(author of the window manager "sawmill") and requested that he change
the name to avoid possible confusion with a (unrelated) product of
theirs called sawmill (or something very similar).  There was no
conflict as John conferred with his user base to come up with the
current name "sawfish" instead.  That company (I don't remember who)
did this The Right Way and nobody's feelings were hurt :-).

-D

Re: [OT] Harassment of open source developer !

[Carl Fink]

On Wed, Jul 04, 2001 at 07:26:07PM -0400, Antonio Rodriguez wrote:
> It seems to me that from certain perspective it is plain ridiculous that a
> group of humans can claim a word, group of words or phrase as theri personal
> or corporate property. The laws may support it, but the it does not deny its
> stupidity, nor the blindness of the fact.

The idea is really to avoid product confusion.  In principle, if anyone
could call their automobiles "Ferrari", then I could sell rebuilt Yugos
under the name "Ferrari Speedster" and it would damage the selling power of
the real Ferrari's reputation.

Another point raised on the list:  you can't patent "Illustrator", which is
why Adobe trademarked it.

Another point:  since "Illustrator" is a good description of the activity
being performed by the product, it's probably not a defensible trademark. 
(Note: I'm not a lawyer, and am giving no one legal advice.) By law, you
can't trademark a description of the product -- for instance, no one can
trademark "soap" and refuse to let anyone else say their product contains
soap.  However, to defend this legal point would require way more money than
it's presumably worth to the KIllustrator developers, since they aren't
getting paid and Adobe has a huge budget for this stuff.
-- 
Carl Fink   [EMAIL PROTECTED]
Manager, Dueling Modems Computer Forum

Re: [OT] Harassment of open source developer !

[Antonio Rodriguez]

It seems to me that from certain perspective it is plain ridiculous that a
group of humans can claim a word, group of words or phrase as theri personal
or corporate property. The laws may support it, but the it does not deny its
stupidity, nor the blindness of the fact.

Re: [OT] Harassment of open source developer !

[Jeld The Dark Elf]

On Wed, Jul 04, 2001 at 05:39:33PM -0400, Jason Healy wrote:
> At 994279436s since epoch (07/04/01 16:43:56 -0400 UTC), Balbir Thomas wrote:
> > After all what kind of a person or company would want to levy a financial 
> > burden on a man who has contributed his time and resources, for a community
> > benifit.
> 
> [Obligitory IANAL]
> 
> Probably because if you don't protect your trademarks in this country,
> they fall into the public domain.  That's why you can say "asprin"
> when you want to cure a headache (because Bayer didn't defend its
> trademark), but not Xerox(tm) to mean photocopying, Kleenex(tm) to
> mean facial tissues, and Ziplock(tm) to refer to plastic storage bags.
> 
> If Adobe doesn't sue people, well-intentioned as they may be, then
> they have no legal recourse against Microsoft Illustrator when it
> comes down the line.
> 
> Admittedly, Adobe's lawyers were jerks about it, but still...
> 
> Jason
> 
First, let me point out that this news article was all over slashdot and other 
news sources 
and I don't think it is relevant to this list. But since the brawl has already 
started I will 
throw a couple of punches. Surely the word KIllustrator when we are talking 
about a page layout
formatting software is a clear reference to Adobe Illustrator. And Illustrator 
is Adobe's trademark
which they will defend with all the might of their legal department. I don't 
see why an open source 
developer should get off any easier then anybody ( or anything ) else since 
law is the same 
for everybody On the other hand the word illustrator has 
existed long before Adobe was around and I don't think they should have been 
allowed to patent that word as being a common use word. How about MS suing 
everybody for Word word or Intel suing for number 86 or IBM suing for number 2 
or word Lotus. We have a trademark hell and do nothing about it. Everybody 
knows that there has been copyright infridgement lawsuits involving totally 
unrelated products and that at least some of those have been won. So, MS was 
denied patent for Word trademark and Intel and IBM were denied on the grounds 
that one cannot patent a number or symbol
I don't see why Adobe could patent illustrator. 

P.S. In any case I sit at home, crawl in nessus source code with a bottle of 
beer and Purcel's song playing from my CD and feel fine. Hope everybody else is 
enjoying themselves.

-- 
FRIEND: A member of the opposite sex in your acquaintance who has some flaw 
which makes sleeping with him/her totally unappealing.

Re: [OT] Harassment of open source developer !

[Carl Fink]

On Wed, Jul 04, 2001 at 05:39:33PM -0400, Jason Healy wrote:
> Probably because if you don't protect your trademarks in this country,
> they fall into the public domain.  That's why you can say "asprin"
> when you want to cure a headache (because Bayer didn't defend its
> trademark) . . . 

Urban myth.  Actually the trademark was invalidated after World War One (in
the Versaille Treaty, according to some sources I've seen) because Bayer was
a German company.  It's still a valid mark in Europe.
-- 
Carl Fink   [EMAIL PROTECTED]
I-Con's Science and Technology Programming

Re: [OT] Harassment of open source developer !

[Jason Healy]

At 994279436s since epoch (07/04/01 16:43:56 -0400 UTC), Balbir Thomas wrote:
> After all what kind of a person or company would want to levy a financial 
> burden on a man who has contributed his time and resources, for a community
> benifit.

[Obligitory IANAL]

Probably because if you don't protect your trademarks in this country,
they fall into the public domain.  That's why you can say "asprin"
when you want to cure a headache (because Bayer didn't defend its
trademark), but not Xerox(tm) to mean photocopying, Kleenex(tm) to
mean facial tissues, and Ziplock(tm) to refer to plastic storage bags.

If Adobe doesn't sue people, well-intentioned as they may be, then
they have no legal recourse against Microsoft Illustrator when it
comes down the line.

Admittedly, Adobe's lawyers were jerks about it, but still...

Jason

--
Jason Healy| [EMAIL PROTECTED]
LogN Systems   |   http://www.logn.net/

Re: [OT] Harassment of open source developer !

[Eric G. Miller]

On Wed, Jul 04, 2001 at 03:43:56PM -0500, Balbir Thomas wrote:
> I would believe the ethical way to deal with an opensource developer,
> who doesn't profit from his products is to contact him first, rather
> than throw a bunch of law dogs at him. After all what kind of a person
> or company would want to levy a financial burden on a man who has
> contributed his time and resources, for a community benifit . Would
> you wan't to do that to Abe L. ?  Adobe did no such thing . 

Ain't no benefit to Adobe if KIllustrator actually becomes competive. I
understand your point that maybe Adobe should've contacted the developer
in a less threatening manner first...  I don't imagine Adobe will persue
this matter unless the KIllustrator authors don't change the name.  If
they continued to pursue civil damages after a name change, then I can
see getting a bit irate.

[snip]

> Perhaps you may also agree that X Windows ought to naturally sue
> Microsoft for a trademark infringement ? This among other interesting
> points to ponder on are in the long streem of replies in the slashdot
> thread . I hope people will have a look at it. 

Nope.  It's the "X Window System", not "X Windows".  And I generally
avoid Slashdot -- the signal to noise ratio is too low most of the time.

-- 
Eric G. Miller 

Re: [OT] Harassment of open source developer !

[Balbir Thomas]

On Wed, Jul 04, 2001 at 12:05:14PM -0700, Eric G. Miller wrote:
> On Wed, Jul 04, 2001 at 01:00:38PM -0500, Balbir Thomas wrote:
> > Hi,
> > Yet another case of open source developers being harassed. Adobe
> > lawyers ask developer of killustrator to pay fines for using a name
> > that abuses their trade mark illustrator. Go read about it at slashdot
> > , and then give your feedback to Adobe. I already did. We can't let
> > such harassment go without being protested. If I were a conspiracy
> > theorist I would see a pattern here . While corporation are leagly
> > portected to indulge in some kinds of "negative advertising" as a
> > "competitive stratergy" open source developer are sued because the
> > english language words are now "trademarks". 
> 
> Protest all you like, but I think Adobe probably has a valid claim of
> trademark infringement.  It doesn't take any stretch of imagination to
> see that "KIllustrator" is a knock-off of "Adobe Illustrator [tm]".
> Like it or not, probably any U.S. court would agree.  I'm sure the
> "KIllustrator" folks will just change the name and move on.  Nothing
> will be gained by stuffing Adobe's inbox with rants.  While Adobe has
> been circumspect about Linux and *BSD, a bunch of rants is more likely
> just to irritate them and make them not want to support Linux/*BSD in 
> the future.
> 
> Eric G. Miller 

I would believe the ethical way to deal with an opensource developer, who
doesn't profit from his products is to contact him first, rather than throw
a bunch of law dogs at him. After all what kind of a person or company would 
want to levy a financial burden on a man who has contributed his time and 
resources, for a community benifit . Would you wan't to do that to Abe L. ?
Adobe did no such thing . 

The point of protesting is to develop, (over a period of time) a business ethic
of resolving disputes in the opensource community. For instance such an ethic 
already exits as far a product support goes -- one ask for help politely in a 
forum as this. One does not conisder it a right to send mail like a 
dissatisfied customer writing to some company who he/she paid a lot of money 
too. I hope you see the point . The time must come when companies realise that 
open source developers are not to be dealt with in the same "dog eat dog" way 
they do among their lot. Not putting up protests, would only encourage a trend 
of bullying helpless 
open source (or rather free software) developers. 

While I do appreciate what may have been your concern to take a balanced point 
of view, to portray oneself(or the opensource community )  in good standing. I 
do not believe there can be any  scope for neutrality in battle. Neutrality is 
only a form of tacit support. You are probably right that what will eventually 
come out of this is that the developer would just change the name and go on . 
And this is fact that I will have to accept with great regret. 

Perhaps you may also agree that X Windows ought to naturally sue Microsoft for
a trademark infringement ? This among other interesting points to ponder on are
in the long streem of replies in the slashdot thread . I hope people will have 
a look at it. 

Earnestly
B Thomas

Re: [OT] Harassment of open source developer !

[Erik Steffl]

"Eric G. Miller" wrote:
> 
> On Wed, Jul 04, 2001 at 01:00:38PM -0500, Balbir Thomas wrote:
> > Hi,
> > Yet another case of open source developers being harassed. Adobe
> > lawyers ask developer of killustrator to pay fines for using a name
> > that abuses their trade mark illustrator. Go read about it at slashdot
> > , and then give your feedback to Adobe. I already did. We can't let
> > such harassment go without being protested. If I were a conspiracy
> > theorist I would see a pattern here . While corporation are leagly
> > portected to indulge in some kinds of "negative advertising" as a
> > "competitive stratergy" open source developer are sued because the
> > english language words are now "trademarks".
> 
> Protest all you like, but I think Adobe probably has a valid claim of
> trademark infringement.  It doesn't take any stretch of imagination to
> see that "KIllustrator" is a knock-off of "Adobe Illustrator [tm]".
> Like it or not, probably any U.S. court would agree.  I'm sure the
> "KIllustrator" folks will just change the name and move on.  Nothing
> will be gained by stuffing Adobe's inbox with rants.  While Adobe has
> been circumspect about Linux and *BSD, a bunch of rants is more likely
> just to irritate them and make them not want to support Linux/*BSD in
> the future.

  <:-)>

  they should rename KIllustrator to: Adobe Illustrator Replacement

  that should be covered by fair use (it only refers to adobe
illustrator which is allowed)

  

erik

Re: [OT] Harassment of open source developer !

[Eric G. Miller]

On Wed, Jul 04, 2001 at 01:00:38PM -0500, Balbir Thomas wrote:
> Hi,
> Yet another case of open source developers being harassed. Adobe
> lawyers ask developer of killustrator to pay fines for using a name
> that abuses their trade mark illustrator. Go read about it at slashdot
> , and then give your feedback to Adobe. I already did. We can't let
> such harassment go without being protested. If I were a conspiracy
> theorist I would see a pattern here . While corporation are leagly
> portected to indulge in some kinds of "negative advertising" as a
> "competitive stratergy" open source developer are sued because the
> english language words are now "trademarks". 

Protest all you like, but I think Adobe probably has a valid claim of
trademark infringement.  It doesn't take any stretch of imagination to
see that "KIllustrator" is a knock-off of "Adobe Illustrator [tm]".
Like it or not, probably any U.S. court would agree.  I'm sure the
"KIllustrator" folks will just change the name and move on.  Nothing
will be gained by stuffing Adobe's inbox with rants.  While Adobe has
been circumspect about Linux and *BSD, a bunch of rants is more likely
just to irritate them and make them not want to support Linux/*BSD in 
the future.

-- 
Eric G. Miller 

Re: [OT] Harassment of open source developer !

[der.hans]

Am 04. Jul, 2001 schwäzte Balbir Thomas so:

> Yet another case of open source developers being harassed. Adobe lawyers
> ask developer of killustrator to pay fines for using a name that abuses
> their trade mark illustrator. Go read about it at slashdot , and then
> give your feedback to Adobe. I already did. We can't let such harassment
> go without being protested. If I were a conspiracy theorist I would see
> a pattern here . While corporation are leagly portected to indulge in
> some kinds of "negative advertising" as a "competitive stratergy" open
> source developer are sued because the english language words are now
> "trademarks".

Nothing new. In the 80's a New Yorker was sued for selling Hebrew Bookshelf
or something. m$ said it infringed on their "bookshelf" series. It was
software, so he lost ( or couldn't fight it, don't know which ).

Try writing a "nutshell" book on something to do with computers and see what
kind of messages you get from Tim O'Reilly ;-). He's even on our side and I
still bet he'd sue.

ciao,

der.hans
-- 
# [EMAIL PROTECTED] home.pages.de/~lufthans/ www.DevelopOnline.com
#  A t-shirt a day keeps the noose (tie) away. - der.hans

[OT] Harassment of open source developer !

[Balbir Thomas]

Hi,
Yet another case of open source developers being harassed. Adobe lawyers ask 
developer of killustrator to pay fines for using a name that abuses their trade 
mark illustrator. Go read about it at slashdot , and then give your feedback
to Adobe. I already did. We can't let such harassment go without being 
protested. If I were a conspiracy theorist I would see a pattern here . While 
corporation are leagly portected to indulge in some kinds of "negative 
advertising" as a "competitive stratergy" open source developer are sued 
because the english language words are now "trademarks". 

B.Thomas