[conspire] Generic Linux?

[Paul Zander]

As an interesting counter example:

There was a resale store called the Discovery Shop on Santa Cruz Ave a few blocks from El Camino.  That name was used since (around) 1970 when the business first opened in Redwood City.

Then the American Cancer Society started opening resale stores across the country also using the name Discover Shop.  Eventually they came to CA.  When the Cancer Society tried to register "Discovery Shop" as a business in CA they found the name was already taken.

The two groups had some discussions.  Although the group that had the legal use of the name in CA had a solid case, they decided that the greater good would be served by allowing the Cancer Society to have a consistent name across the country.  Now if you go through the business district on Santa Cruz Ave, you will find the Discovery Shop and also "The Shop".

Paul


--- On Mon, 6/14/10, Rick Moen <rick at linuxmafia.com> wrote:

From: Rick Moen <rick at linuxmafia.com>
Subject: Re: [conspire] Generic Linux?
To: conspire at linuxmafia.com
Date: Monday, June 14, 2010, 12:57 PM

Quoting Tony Godshall (tony at of.net):

> yes, and more at...
> 
> http://www.linuxmark.org/faq.php
> http://www.linuxmark.org/attribution.php

Be aware that trademark owners' public statements will _always_
greatly overstate the rights of trademark owners and the obligations of
third-party users, and that certainly includes Linux Mark Institute.

(Why?  Because their object isn't to teach you law, but rather to
protect their property.)

1.  Attribution is not a legal requirement.  As part of that, the use
    of the (R) (or R in circle) symbol is never required, but is
    sometimes _forbidden_ by law, i.e., it maybe used only by owners
    who've paid the $330/decade registration fee to USPTO.
2.  Permission is not a legal requirement, not even for use in commerce.
3.  Use without commerce (as long as it doesn't commit the tort of 
    trademark disparagement) is automatically lawful.
4.  The only uses in commerce that commit the tort of trademark
    infringement are uses tending to confuse the trademark owner's 
    customers into thinking the trademark owner produced or endorsed the
    competing goods or services.  Furthermore, this obligation to avoid
    confusion applies only within the same trade or industry.

In short, the monopoly granted by trademark is a very limited one over 
_brand impression_ created by distinctive names and symbols, e.g.,
Nike's right to insist that its 'swoosh' never be used in ways likely to 
confuse its customers into thinking that Shenzen Shoe Company's shoes
are Nike's.  But this doesn't mean Shenzen needs to ask Nike's
permission to put the swoosh on its shoes and promotional material:  It
could, for example, write below that 'Shenzen Shoe Company's products
are not produced or endorsed by Nike', and would be covered.

And the Nike Bar and Grill doesn't have to worry about Nike's trademarks
at all, on account of being in a different trade or industry.



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