> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED]]On Behalf Of Paul Fisher
>
> "John Keiser" <[EMAIL PROTECTED]> writes:
>
> > Capitalization does matter, legally, when a word is both a trademark
> > and a common phrase. I can serve java at my coffeehouse without
> > violating any copyrights.
>
> You're missing the point entirely. When dealing with possible
> trademark infringement, the question to ask is would the average
> person be confused. If we were to call Classpath, "java Classpath",
> the average person would be confused, and Sun would promptly sue us.
Trademarks do not define our language, they deal with conflicting product
names. Period. It's not so much about capitalization as it is about what
word you are actually referring to. It's why lawyers make so much money.
There is a common, public domain word "java" and one that is called "Java."
The trademark prohibits: (a) naming another product in the same trademark
class with a confusingly similar name (this would include using the common
term for coffee in the name of a software product), and (b) using the
trademarked word or phrase without referencing the company (this would not
include using the common term for coffee).
We would be in clear violation if we called ourselves "java Classpath," and
right now we are in violation by calling our library "Classpath: Essential
Libraries for Java". Only if Sun specifically allows us to use the
copyright can we do it. But if we called it Classpath and claimed that
Classpath makes it easy to write a recipe program for drinks, including
java, we would not be in violation. Java is both a common term and a proper
name, and it depends which you use.
Even if Software in the Public Interest once owned and created the phrase,
it is close to legally becoming a "common term." If they don't start
reprimanding all the reporters that use the word without referencing the
company and they don't start yelling at the companies who use the term "open
source" in descriptions of their products, the term will simply become
common property.
I remember this happening to Jimmy Buffet once, with the title of one of his
songs, "Hamburger in Paradise." Apparently he tolerated some place using
the name for 10 years or some time limit, and after that point he couldn't
stop them from using it anymore. He had not protected his trademark. I
don't know all the details, but that was the crux of the story.
As far as I am concerned, "open source" is now a common term, which means I
can use it without referencing the company and I can even use it to describe
my product. I do not foresee SPI being able to stop it from *becoming* a
common term if it is not already.
--John Keiser
