In view of the developments on this topic, I want to set out the legal
position as I see it. This means this will be a longish and probably
unpopular message.
I am working on the assumption that we are in agreement that there is a high
degree of similarity between the proposed QL and the Hillfinger logos.
1: Arguments that we used the logo first are legally irrelevant. The
important question is who first registered it as a trademark, and there is
no doubt that is Hillfinger. We have had 17 years to use the QL screens as a
logo, but until now have not done so. Furthermore we did not object when
Hillfinger registered it as trademark. On these grounds we have to concede
Hillfinger has the prior claim.
2: First use arguments would be legally relevant in a situation where
Hillfinger demanded that we cease to use our QL's because we are infringing
his copyright. This is not just a theoretical point. First use arguments
allow Marcel to use the white and red screens in his QPC icon and Rich
Mellor to use them on the cover of his SBasic/Superbasic Reference Manual.
These are directly related to the QL, a tee-shirt is not.
3: A key question is whether the two logos could be confused. The main
arguments advanced against confusion are that the Hillfinger logo is
animated (but not on a garment), has no stippled border and has two #0
windows. In my opinion these are the "small print" of the logo and therefore
of limited legal relevance. When I see the Hillfinger logo, particularly
from a distance, I see a white and red square. My first association is with
the QL. We can assume this will also be so in the reverse direction.
4: It is suggested we do not have a competing product. If we put the QL logo
on a tee-shirt we legally, if not practically, do have a competing product.
>From a distance people could associate this with Hillfinger, and Hillfinger
could allege financial damage. (It could be argued that our tee-shirt is an
"inferior product" that, by association, would damage the reputation of
Hillfinger.)
5: One point in our favour is that it would be fairly easy to prove we had
no malicious intent.
6: Finally, sorry to get personal, but most of the protagonists for the logo
are not traders and they have personally little to lose. The people in the
firing line will be the traders who make use of the logo, and, in particular
the trader who produces or sells any tee-shirt or similar product. For this
reason Just Words! will not give its support to or co-operate in any way
with the proposed QL logo.
Geoff Wicks
[EMAIL PROTECTED]
